IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


1^121    |25 
■tt  I&2    12.2 

2.0 


14.0 


1.25 


■HWU 

U    |L6 


6" 


l9)otDgra{d]ic 

SdSioes 

Corporalion 


/. 


31  wes?  1  aiN  STRUT 

Vyit>TIR,N.Y.  I4SI0 


ri>^ 


4^ 


o^ 


CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICMH 
Collection  de 
microfiches. 


Canadian  Instituta  for  Historical  IMIicroreproductions  /  Institut  Canadian  da  microraproductions  historiquas 


-■iM 


Technical  and  Bibliographic  Notaa/Notos  tachniquaa  at  bibiiographiquaa 


The  Instituta  haa  attamptad  to  obtain  tha  baat 
original  copy  availabia  for  filming.  Faaturaa  of  thia 
copy  which  may  ba  bibliographically  uniqua, 
which  may  a'tar  any  of  tha  imagaa  in  tha 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checlced  below. 


D 


n 


n 


Coloured  covers/ 
Couverture  de  couleur 


I     I    Covers  damaged/ 


Couverture  endommagte 

Covers  restored  and/or  laminated/ 
Couverture  reataurte  et/ou  peliiculte 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cart^  gtographiques  en  couleur 

Coloured  ink  (I.e.  other  than  blue  or  biKCic)/ 
Encre  de  couleur  (i.e.  autre  que  bieue  ou  noire) 


I     I   Coloured  plates  and/or  iiluatrations/ 


D 


Planches  et/ou  iiiustrationa  en  couleur 


Bound  with  other  material/ 
RalM  avac  d'autras  documanta 


Tight  binding  may  cauae  ahadowa  or  distortion 
along  interior  margin/ 

La  re  liure  serrte  peut  cauaar  de  I'ombre  ou  de  la 
diatortion  le  long  de  la  marge  IntArieure 

Blank  laavaa  added  during  reatoration  may 
appear  within  the  text.  Whenever  poaaibia,  theae 
have  been  omitted  from  filming/ 
II  se  peut  que  certalnea  pagea  bianchea  aJoutAea 
iora  d'une  reatauration  apparaissent  dana  le  texte, 
mala,  ioraqua  cela  Atait  poaaibia,  caa  pagea  n'ont 
pea  At4  filmAes. 

Additional  comments:/ 
Commentairea  supplAmantairaa: 


L'Institut  a  microfilm^  la  mailleur  exemplaire 
qu'il  lui  a  At*  possible  de  se  procurer.  Les  dAtaila 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibiiographique,  qui  pauvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mAthode  normale  de  filmage 
sont  indiquAa  ci-deasous. 


Th 
to 


I — I   Coloured  pagea/ 


D 


Pagea  de  couleur 

Pages  damaged/ 
Pagea  andommagtea 


□   Pages  reatored  and/or  laminated/ 
Pages  restaurtea  et/ou  peiliculAes 

0    Pagea  discoloured,  stained  or  foxed/ 
Pages  dAcolortes,  tachattea  ou  piqu6ea 

□   Pages  detached/ 
Pages  dAtachtea 

Showthrough/ 
Transparence 

Quality  of  prir 

Quality  in^gaia  de  i'impreaslon 

Includee  supplementary  matarii 
Comprend  du  matAriai  auppMmantaira 

Only  edition  available/ 
Seule  Mitlon  diaponible 


rri  Showthrough/ 

r~n  Quality  of  print  varies/ 

I     I  Includee  supplementary  material/ 

r~n  Only  edition  available/ 


Pagea  wholly  or  partially  obscured  by  errata 
aiipa,  tiaauea,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Lei.  pages  totalement  ou  partiellement 
obacurciaa  par  un  faulllet  d'errata,  une  pelure, 
etc..  ont  At*  filmAea  A  nouveau  de  fapon  A 
obtanir  la  mellleure  image  poaaibia. 


Th 
po 
of 

fill 


Or 
ba 
thi 
sic 
oti 
fir 
si< 
or 


Til 
sh 
Til 

wl 

M 
dil 
ar 
b« 

rij 
re 
m 


Thia  item  la  filmed  at  tha  reduction  ratio  checked  below/ 

Ce  document  eet  film*  au  taux  de  reduction  indlquA  ci-deaaous. 

10X  14X  18X  22X 


26X 


30X 


X 


12X 


16X 


20X 


a4X 


32X 


Th«  copy  fllmad  Iwr*  hat  bMn  r«produc«d  thanka 
to  tho  gonorosity  of: 

DouglM  Library 
Quaan't  Univaraity 


L'axamplaira  film*  fut  raprodui;  grAca  A  la 
ginAroait*  da: 

Douglaa  Library 
Quaan's  Univaraity 


Tha  imagaa  appaaring  hara  ara  tha  baat  quality 
poaalbia  conaldaring  tha  condition  and  laglbility 
of  tha  original  copy  and  In  kaaping  with  tha 
filming  contract  apaciflcationa. 


Original  copiaa  in  printad  papar  covara  ara  filmad 
baglnning  with  tha  front  covar  and  anding  on 
tha  laat  paga  with  a  printad  or  illuatratad  Impraa- 
aion,  or  tha  back  covar  whan  approprlata.  All 
othar  original  copiaa  ara  filmad  baglnning  on  tha 
f  Irat  paga  with  a  printad  or  illuatratad  Impraa- 
alon,  and  anding  on  tha  laat  paga  with  a  printad 
or  Illuatratad  Impraaaion. 


Tha  laat  racordad  frama  on  aach  microfiche 
ahall  contain  tha  aymbol  -^>  (moaning  "CON- 
TINUED"), or  tha  aymbol  Y  (moaning  "END"), 
whichavar  appliaa. 

IVIapa,  piataa,  charta,  ate,  may  ba  filmad  at 
diffarant  raduction  ratloa.  Thoaa  too  larga  to  ba 
antlraly  inciudad  in  ona  axpoaura  ara  filmad 
baglnning  in  tha  uppar  iaft  hand  cornar,  iaft  to 
right  and  top  to  bottom,  aa  many  framaa  aa 
raquirad.  Tha  following  diagrama  illuatrata  tha 
mathod: 


Laa  Imagaa  auivantaa  ont  MA  raproduitaa  avac  la 
plua  grand  aoln,  compta  tanu  da  la  condition  at 
da  la  nattatA  da  raxampiaira  f limA,  at  an 
conformitA  avac  laa  condltlona  du  contrat  da 
fllmaga. 

Laa  axamplalraa  originaux  dont  la  couvartura  en 
papiar  aat  ImprimAa  aont  fllmAa  an  commandant 
par  la  pramiar  plat  at  an  tarminant  aoit  par  la 
darnlAra  paga  qui  comporta  una  amprainta 
d'Impraaaion  ou  d'illuatratlon,  aoit  par  la  sacond 
plat,  aalon  la  caa.  Toua  laa  autraa  axamplairaa 
originaux  aont  fllmAa  an  commandant  par  la 
pramlAra  paga  qui  comporta  una  amprainta 
d'Impraaaion  ou  d'illuatratlon  at  an  tarminant  par 
la  darnlAra  paga  qui  comporta  una  talla 
amprainta. 

Un  daa  aymbolaa  auivanta  apparattra  aur  la 
darnlAra  imaga  da  chaqua  microficha,  aalon  la 
caa:  la  aymboia  — »•  aignifia  "A  SUiVRE",  la 
aymbola  V  aignifia  "FIN". 

Laa  cartaa,  planchaa,  tablaaux,  ate,  pauvant  Atra 
filmAa  A  daa  taux  da  rAduction  diff Aranta. 
Loraqua  la  documant  aat  trop  grand  pour  Atra 
raproduit  an  un  aaul  clichA,  11  aat  filmA  A  partir 
da  I'angla  aupAriaur  gaucha,  da  gaucha  A  droita, 
at  da  haut  an  baa,  an  pranant  la  nombra 
d'Imagaa  nAcaaaaira.  Laa  diagrammaa  auivanta 
iiluatrant  la  mAthoda. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

Su 


J  ri^ 


The  Behring  Sea  Dispute 


J 


Submitted  as  one  ok  thk  Requirements  for  the  IJeoree  ok  I^ocior  of 
Philosophy  in  the  School  of  Political  Science,  Columbia  College 


BY 


STEPHEN  BERRIEN  STANTON 


Seligman  Fellow 


ALBERT  B.  KING,  PRINTER 

87  &  89  William  Street 

New  York 


3x?.^^  A--^^^ 


12139 


THE  BEHEING  SEA  DISPUTE. 


CHAPTER  I. 


Not  infrequently  does  a  fever  of  popular  excitement 
lend  to  national  weakness  an  apparent,  yet  unreal  strength. 
The  Behring  Sea  dispute  is  an  illustration.  Like  all  dis- 
putes about  the  national  domain,  it  has  called  out  an  abun- 
dance of  bluster.  So  that  a  claim  asserted  by  our  govern- 
ment uncertainly  and  perhaps  unwittingly,  has  been 
borne  aloft  on  the  shoulders  of  the  people  into  a  position 
of  dangerous  prominence.  It  therefore  becomes  important 
to  examine  this  controversy  in  the  cold,  clear  light  which 
international  law  and  history  shed  upon  it.  Accordingly 
what  follows  is  less  an  argument  than  an  exposition. 

The  necessity  of  knowing  precisely  what  we  are  to  dis- 
cuss, leads  me  to  present,  first,  a 


Statement  of  Facts. 

U.  S.  Revised  Statutes.— "Section  1954.  The  laws 
of  the  United  States  relating  to  customs,  commerce  and 
navigation,  are  extended  to  and  over  all  the  main-land, 
islands,  and  waters  of  the  Territory  ceded  to  the  United 
States  by  the  ^mperor  of  Russia  by  treaty  concluded  at 
Washington  on  the  thirtieth  day  of  March,  a.  d.  one  thou- 
sand eight  hundred  and  sixty-seven,  so  far  as  the  same 
may  be  applicable  thereto. 


_2_ 

"Sec  ;J6.  No  person  shall  kill  any  otter,  mink,  mar- 
ten, sable,  or  fur-seal,  or  other  fiir-bearing  animal  witliin 
the  limits  of  Alaska  Territory,  or  in  the  waters  thereof. 

*        *        * 


"Sec.  ion?.  *  ^  *  The  collector  and  deputy  col- 
lectors appointed  for  Alaska  Territory,  and  any  person 
authorized  in  writing  by  either  of  them,  or  by  the  Secre- 
tary of  the  Treasury,  shall  have  power  to  arrest  persons 
and  seize  vessels  and  merchandise  liable  to  tines,  penalties 
or  forfeitures  under  this  and  the  other  laws  extended  over 
the  Territory    *      *    ." 

Such  were  the  laws  which  first  apprised  the  woi'ld  that 
the  United  States  had  stretched  over  the  Behring  Sea  its 
iron  hand  of  domiUiOn.  They  were  enacted  July  1st,  1870, 
immediately  after  the  cession  of  Alaska. 

The  vague  term  in  these  laws,  "Avaters  thereof,"  re- 
mained for  a  time  unfocused.  It  did  not  at  first  give  rise 
to  a  claim  of  more  than  ordinary  maritime  jurisdiction. 
This  is  evident  from  the  following  incident : 

In  1872  Mr.  Phelps,  ^  collector  of  the  Port  of  San  Fran- 
Cisco,  reported  to  the  Secretary  of  the  Treasury  that  ex- 
peditions were  being  organized  in  Australia  and  the  Ha- 
waiian Islands  to  capture  seals  on  their  annual  migration 
to  the  Seal  Islands  of  St.  Paul  and  St.  George.  He  recom- 
mended that  a  revenue-cutter  be  sent  to  prevent  this.  But 
Sec.  Boutwell's  reply  was  : 

"I  do  not  see  that  the  United  States  would  have  the 
jurisdiction  or  i30wer  to  drive  off  parties  going  up  there 
for  that  purpose,  unless  they  made  such  attempt  within  a 
marine  league  of  the  shore."  ^ 

1881,  however,  seems  to  mark  the  change  of  opinion  on 
this  point.     The  occurrence  in  that  year  of  similar  expe- 


1  Enclosure  No.  156.  Let.  to  Mr.  Boutwell,  Sec.  of  Treas.,  March  25, 
1873.  This  and  the  succeeding  references  given  by  number  refer  to  60 
Cong.,  2dScss.    Sen.  Ex.  Doc.  No.  106. 

8  No.  56,    Letter  to  Mr.  Phelps,  April  19,  1873. 


— 3- 


ditions  prompted  Collector  D.  A.  D'Ancona  to  request 
from  the  Treasury  Department  more  accurate  information 
as  to  the  meaning  of  the  above  laws.  The  interpretation 
now  put  upon  them  was  as  follows  : 

"You  inquire  in  regard  to  the  interpretation  of  the 
terms  'waters  thereof  and  'waters  adjacent  thereto'  as 
used  in  the  law,  and  how  far  the  jurisdiction  of  the  United 
States  is  to  be  understood  as  extending. 

"  Presuming  your  inquiry  to  relate  more  especially  to 
the  waters  of  Western  Alaslia,  you  are  informed  that  the 
treaty  with  Russia  of  March  30,  1870,  by  which  the  Terri- 
tory of  Alaska  was  ceded  to  the  United  States,  defines  the 
boundary  of  the  Territory  so  ceded.     *        *        * 

*  *  *  "All  the  waters  within  that  boundary,  to  the 
western  end  of  the  Aleutian  Archipelago  and  chain  of 
islands,  are  considered  as  comprised  within  the  waters  of 
Alaska  Territory.  All  the  penalties  prescribed  by  law 
against  the  killing  of  fur-bearing  animals  would  therefore 
attach  against  any  violation  of  law  within  the  limits  before 
described."  ^ 

In  1886  this  ruling  was  affirmed  by  Secretary  Manning 
in  a  letter  »  to  Collector  Hagan  : 


"  Treasury  Department, 

"  March  6,  1886. 

<«  Sir.—l  transmit  herewith  for  your  information  a  copy 
of  a  letter  addressed  by  the  Department  on  the  12th  March, 
1881,  to  D.  A.  D'Ancona,  concerning  the  Jurisdiction  of 
the  United  States  in  the  waters  of  the  Territory  of  Alaska 
and  the  prevention  of  the  killing  of  fur  seals  and  other 
fur-bearing  animals  within  such  areas  as  prescribed  by 
chapter  3,  title  23,  of  the  Revised  Statutes.  The  attention 
of  your  predecessor  in  office  was  called  to  the  subject  on 


1  No.  212.    Treaa.  Regs.  Let.  of  Acting-Sec.  French  to  Mr.  D'Ancona, 
March  12.  1881. 

2  No.  156. 


_4— 

the  4th  April,  1881.  This  comTniinication  is  addressed  to 
you  inasmuch  as  it  is  understood  tlint  certain  parties  at 
your  port  contemplate  the  iitting  out  of  exjieditions  to  kill 
fur  seals  in  tliesH  waters.  You  are  requested  to  give  duo 
publicity  to  such  letters,  in  order  that  sncli  parties  may  be 
informed  of  the  construction  placed  by  this  Department 
upon  the  provision  of  law  referred  to. 

"Respectfully,  yours, 

"  B.  Manning, 

*' Secrerary.'' 


But  as  yet  no  raptures  were  made. i  British  Colum- 
bian sealers,  in  Alaskan  waters,  remained  unmolested  so 
late  as  188.1» ;  and  this,  although  spoken  by  American  rev- 
enue-cutters. In  the  spring  of  1886  a  large  iieet  prepared 
for  the  coming  seal  fishing  season  in  Behring  Sea.^ 

In  August,  however,  of  that  year,  the  United  States  crui- 
ser Corwi?i,  acting  under  instructions  from  the  Treasury 
Department,  seized  at  a  distance  of  11.'),  45  and  70  miles 
from  the  island  of  St.  George,  respectively,  the  British 
Columbian  seal-schooners  Omoard^  Carolena  and  Tliorn- 
ton.  They  were  taken  into  Sitka,  confiscated  and  con- 
demned to  be  sold. 

The  libel  of  information  of  the  United  States  Dis- 
trict Attorney  for  Alaska  against  these  vessels  declared 
them  "forfeit  to  the  use  of  the  United  States"  on  the 
ground  of  being  "  found  engaged  in  killing  fur  seals  within 
the  limits  of  Alaska  Territory  and  in  the  waters  thereof  in 
violation  of  section  1956  of  the  Revised  Statutes  of  the 
United  States."  » 

The  brief  for  the  defendants,  on  the  other  hand,  con- 
tained the  following  argument : 

"  The  first  question  then  to  be  decided  is  what  is  meant 


1  No.  12.  Let.  Mr.  Bayard  to  Sir  L.  S.  S.  West,  April  12,  1887; 

No.  117.     Let.  Lord  Lansdowne  to  Mr.  Stanhope,  Nov.  39,  1886. 
8  No.  156.    Let.  Mr.  Lubbe  to  Mr.  Baker,  March  30,  1886. 

8  No.  14.  U.  S.  m.  The  Carolena.  &c. 


_ri- 


by  the  waters  thereof.  If  the  defondniifs  are  bound  by 
the  treaty  between  tlie  United  States  and  Russia  ceding 
Alaska  to  the  United  States,  tlien  it  ai)pears  that  Russia 
in  1852  claimed  absolute  territorial  sovereignty  over  the 
Ik'hring  Sea,  and  puri)orted  to  convey  practicnlly  one-half 
of  that  sea  to  the  United  States.  But  are  tlie  defendants, 
as  men  belonging  to  a  county  on  friendly  terms  with  the 
United  States,  bound  by  this  assertion  of  Russia  ?  And 
ran  the  United  States  claim  that  the  treaty  conveys  to 
them  any  gr<^ater  right  than  Russia  herself  possessed  in 
these  wateis?  In  other  woids,  the  mere  assertion  of  a  riglit 
contrary  to  the  comity  of  nations  can  confer  on  the  gran- 
tees no  rights  in  excess  of  those  recognized  by  the  laws  of 
nations. 

"  It  also  appears  that  the  United  States  in  claiming 
sovereignty  over  the  Behring  Sea  is  claiming  something  be- 
yond the  well-recognized  law  of  nations,  and  bases  her 
claim  upon  the  pretensions  of  Russia,  which  were  success- 
fnlly  repudiated  by  both  Great  Britain  and  the  United 
States.  A  tieaty  is  valid  and  binding  between  the  parties 
to  it,  but  it  cannot  affect  others  who  are  not  parties  to  it. 
It  is  an  agreement  between  nations,  and  would  be  con- 
strued in  law  like  an  agreement  between  individuals. 
Great  Britain  was  no  party  to  it  and  therefore  is  not 
bound  by  its  terms."  ^ 

Judge  Dawson,  after  quoting  the  first  article  of  the 
Alaska  cession  treaty,  charged  the  jury  : 

"All  the  waters  within  the  boundary  set  forth  in  this 
treaty  to  the  western  end  of  the  Aleutian  archipelago  and 
chain  of  islands  are  to  be  considered  as  comprised  within 
the  waters  of  Alaska,  and  all  the  penalties  prescribed  by 
law  against  the  killing  of  fur-bearing  animals  must,  there- 
fore, attach  against  any  violation  of  law  within  the  limits 
heretofore  described. 

"If,  therefore,  the  jury  believe  from  the  evidence  that 
the  defendants  by  themselves  or  in  conjunction  with  others 


1  No.  158. 


— 0— 

did,  on  or  about  tlio  time  cliarged  in  the  inl'oimation,  kill 
any  otter,  mink,  marten,  sable,  or  fur-seal,  or  other  fur 
bearing  animal  or  animals,  on  the  shores  of  Alaska  or  in 
the  ]3ehrings  Sea,  east  of  the  193d  degree  of  west  longi- 
tude, the  jury  should  find  the  defendants  guilty."  * 

Sir  L.  S.  Sackville  West,  British  Minister  in  Washing- 
ton, made  a  formal  protest  in  the  name  of  Her  Majesty's 
Government  against  these  seizures.  ^ 

Thereupon  Attorney- General  Garland  issued  the  follow- 
ing order : 

"Judge  Lafayette  Dawson  and 
"M.  B.  Ball, 

"  United  States  District  Attorney,  Sitka,  Alaska: 

"  I  am  directed  by  the  President  to  instruct  you  to  dis- 
continue any  further  proceedings  in  the  matter  of  the 
seizure  uf  the  British  vessels  Carolina,  Onward  and 
Thornton,  and  discharge  all  vessels  now  held  under  such 
seizure  and  release  all  persons  that  may  be  under  arrest  in 
connection  therewith." 


But  its  authenticity  was  suspected  by  those  to  whom  it 
was  directed,  ^  and  consequently  its  execution  was  delayed 
until  its  repetition  in  the  following  fall.  * 

Secretary  Bayard,  in  communicating  to  Sir  L.  S.  S. 
West  the  above  order,  hastened  to  assure  him  that  this 
action  was  taken  "without  conclusion  at  this  time  of  any 
questions  which  may  be  found  to  be  involved  in  these 
cases  of  seizure,"  ^  He  steadily  refused  to  give  any  assur- 
ance of  the  discontinuance  of  such  seizures.  In  answer  to 
an  inquiry  of  Sir  L.  S.  S.  West  as  to  whether  vessels  fitting 
out  for  the  approaching  fishing  season  in  Behring   Sea 


1  No.  14. 

2  No.  2.     Let.  to  Mr.  Bayard,  Oct.  21,  1886. 

3  No.  24.    Let.  Mr.  Garland  to  Mr.  Bayard,  Oct.  13,  1887. 

4  Telegram  of  Oct.  12,  1887  ;  id. 

5  No.  9.    Let.  Mr.  Bayard  to  Sir  L.  S.  S.  West,  Feb.  3,  1887. 


Q 


iiiiglit  roly  on  being  unmolested   by   tlie  cruisers  of  the 
United  States  when  not  near  hind, '  lie  wrote  : 

"The  question  of  instractions  to  Government  vessels  in 
regard  to  preventing  the  indiscriminate  killing  (»f  fur- 
seals  is  now  being  considered,  and  I  will .  iforni  you  at  the 
earliest  day  possible  what  has  been  decided,  so  that  Brit- 
ish and  other  vessels  visiting  the  waters  in  question,  can 
govern  themselves  accordingly."  * 

And  when  later  informed  that  "  Her  Majesty's  Govern- 
ment had  assumed  that  pending  the  conclusion  of  discus- 
sions between  the  two  governments  on  general  questions 
involved,  no  further  seizures  would  be  made  by  order  of 
the  United  States  Government,"  »  he  pronqitly  denied  ever 
saying  anything  to  justify  such  an  assumption,  but  dechitid 
that  "having  no  rersoTi  to  anticipate  any  other  seizures, 
nothing  was  said  in  relation  to  the  possibility  of  such  an 
occurrence."  * 

Here  the  matter  might  have  ended,  but  fresh  seizures 
now  reopened  the  healing  trouble.  All  through  July  and 
August  of  1887  the  events  of  the  preceding  year  were  re- 
peated. During  those  two  months  the  U.  S.  revenue-cutter 
lilchard  Rush  captured  the  British  Columbian  fishing- 
schooners  W.  P.  Sayioard,  59  miles ;  Dolphin,  40  miles  ; 
(h-ace,  96  miles,  and  Anna  Beck,  66  miles,  from  Oonalaska 
Island  ;  and  the  Alfred  Adams,  60  miles  from  the  nearest 
land. 

Formal  protest  was  again  entered  by  the  British  Minister 
at  Washington. «  An  opportunity  was  given  the  owners  of 
these  vessels  to  release  them  on  appeal  bonds. «  But  owing 
to  a  failure  of  the  proctors  to  take  an  appeal  within  the 


1  No.  11.    April  4.,  1887. 

2  No.  12,  April  12,  1887. 

3  No.  15.    Sir  L.  S.  S.  "West  to  Mr.  Bayard,  Aug.  11,  1887. 

4  Let.  to  Sir  L.  8.  S.  West,  Aug.  13,  1887. 

6  No.  23,  Lets.  Sir  L.  S.  S.  West  to  Mr.  Bayard,  Ocs.  12  and  19,  1887. 
6  Let.  Mr.  Garland  to  Mr.  Bayard,  March  9,  1888, 


..     — 8— 

pivsoribecl  time  tliis  privilege  was  lost  to  four  of  the  ves- 
selsi  and  the  decrees  of  condemnation  became  final.  ^ 

These  four  vessels  were  the  Anna  BecJc,  Dolphin,  Grace 
and  Ada.  At  the  request  of  the  Brit  ish  Government,  ^  their 
sale  was  postponed  and  bonds  in  lieu  of  the  vessels  ordered 
to  be  received,  until  the  legality  of  their  seizure  could  be 
investigated."*  No  advantage,  however,  was  taken  of  this 
offer  to  bond,  and  their  value,  while  lying  at  Port  Town- 
send  in  the  custody  of  the  marshal,  depreciated  so  rapidly 
that  a  total  loss  was  feared.  ^  Accordingly,  and,  in  the  case 
of  the  Grace  and  Dolphin,  at  the  express  wish  of  the 
owner, «  these  schooners  were,  on  the  14th  of  November, 
1888,  ordered  to  be  sold.' 

Tile  Act  of  Congress,  approved  March  2,  1889,  cannot 
be  regarded  as  adding  anything  to  the  history  of  these 
events.  It  simply  declared  *  that  Sect.  1956  of  the  Re- 
vised Statutes  already  given,  includes  and  applies  to  "all 
the  dominions  of  the  United  States  in  the  waters  of  the 
Behring  Sea."  But  as  it  does  not  further  define  what 
"these  dominions'"  are,  it  begs  the  question. 

It  also  lays  upon  the  President  the  duty  of  making  an 
annual  proclamation  accordingly  ;  and  on  March  22d  of 
last  year  President  Harrison  did  warn  "all  persons  against 
entering  the  waters  of  the  Behring  Sea  within  the  domin- 
ion of  the  United  States,"  &c.  But  this  expression  is 
equally  unenlightening. 

Aire  ady,  pending  these  difficulties,  negotiations  for  their 
international  settlement  had  been  begun.  On  August  19, 
1887,  Secretary  Bayard  sent  .circular  letters  to  the  U.    S. 


»  No.  46.  Let.  of  Sir  L.  S,  S.  West  to  Mr.  Bayard,  Aug.  6,  1888. 
»No.  45.  Let.  Mr.  Garlund   to  Mr.   Bayanl,  May  31,   1888;  No.  42.  Let. 
Sir  L.  S.  S.  West  to  Mr.  Bayard,  May  28,  fsSS. 

»  No.  46.  Let.  Sir  L.  8.  S.  West  to  Mr.  Bayard,  Aug.  6,  1888. 

*  No.  49.  Let.  Mr.  Jeiilis  to  Mr.  Bayard,  Aug.  10,  1888. 

"  No.  5U.  Let.  Mr.  Garland  to  Mr  Bayard,  Oct.  20,  1888. 
«No.  52.  Let.  Mr.  Atlilnsto  Mr.  Garland,  Aug.  25,  1888. 
'  No.  61.  Let.  Mr.  Garland  to  Mr.  Bayard,  Nov,  14,  1888. 

*  3d  section. 


— 9— 

legations  in  England,  Germany,  Fi  ance,  Japan,  Russia  and 
Norway  and  Sweden.     The  situation  was  thus  described  : 

"Recent  occurrences  have  drawn  the  attention  of  this 
Department  to  the  necessity  of  taking  steps  for  the  better 
protection  of  the  fur-seal  fisheries  in  Behring  Sea. 

"  Without  raising  any  question  as  to  the  exceptional 
measures  which  the  peculiar  character  of  the  property  in 
(juestion  might  justify  this  Government  in  taking,  and  with- 
out reference  to  any  exceptional  marine  jurisdiction  that 
might  i)roperly  be  claimed  for  that  end,  it  is  deemed  advis- 
able—and I  am  instructed  by  the  President  so  to  inform 
you— to  attain  the  desired  ends  by  international  co-opera- 
tion." 

Thereupon  the  respective  ministers  to  those  countries 
were  "instructed  to  draw  the  attention  of  the  Government 
to  which  "  they  were  "  accredited  to  the  subject,  and  to  in- 
vite it  to  enter  into  such  an  arrangement  with  the  Govern- 
of  the  United  States  as  will  prevent  the  citizens  of  either 
couiitry  from  killing  seal  in  Behring  Sea  at  such  times  and 
places,  and  by  such  methods  as  at  present  are  pursued, 
and  which  threaten  the  speedy  extermination  of  those  ani- 
mals and  consequent  serious  loss  to  mankind."  ^ 

It  will  be  noticed  that  the  submission  of  this  matter  to 
the  international  tribunal  is  so  worded  as  to  preclude  any 
idea  of  retraction  or  confession  of  wrong  on  the  part  of  the 
United  States.  This  step  must,  therefore,  be  regarded  as 
taken  solely  from  motives  of  comity. 

Favorable  replies  to  these  invitations  were  received 
from  Great  Britain, »  Russia,  ^  France"*  and  Japan. «  Nor- 
way and  Sweden  approved  the  plan  ;  l)ut,  while  desiring 
the  future  privilege  of  joining  in  such  an  arrangement,  they 
thought  that  their  lack  of  interest  in  the  seal  fisheries 


1  No.  69.  Let.  Mr.  Bayard  to  Mr.  Vignaud. 

8  No.  74.  Let.  Mr.  Phelps  to  M'-.  Bayard,  Nov.  12,  1887, 

•  No.  103.  Let.  M.  de  Oiers  to  Mr.  Lolhrop,  Nov.  25,  1887. 

*  No  70    Let.  Mr.  McLane  to  Mr.  Bayard,  Oct.  22,  1887. 

»  No.  93.  Let.  Mr.  Hubbard  to  Mr.  Bayard,  Sept.  29,  1887. 


—10— 

made  their  present  participation  unnecessary.  ^  Nothing 
had  been  heard  from  Germany  up  to  February  12,  188'.), 
when  the  papers  on  this  subject  were  published. 

To  Mr.  Bayard's  proposal  that  a  close  time  for  fur  seals 
be  established  between  April  15  and  November  1,  and  be- 
tween 100°  of  longitude  west,  and  170°  of  longitude  east  in 
the  Behring  Sea,'  Lord  Salisbury  assented.'  Russia 
eagerly  favored  the  international  conference,  and 
through  her  minister  in  London,  Mr.  de  Staal,  proposed  to 
include  in  the  treaty  both  her  portion  of  the  Behring  Sea 
around  the  Commander  Islands  and  the  sgu  of  Okhotsk.  * 
The  American  Department,  ^  readily  agreed  to  this  proposi- 
tion and  Lord  Salisbury  suggested  the  extension  of  the 
regulated  area  to  those  parts  of  the  Sea  of  Okhotsk  and 
the  Pacilic  Ocean  north  of  north  latitude  47°^ 

Just  at  this  juncture,  however,  these  negotiations  so 
amicably  pending  at  London  were  stopped.  In  June,  1888, 
the  Canadian  Government  informed  Lord  Salisbury  that  a 
memorandum  on  this  matter  was  being  prepared  for  for- 
warding to  London,  and  begged  that  Her  Majesty's  Gov- 
ernment would  delay  all  further  action  until  its  arrival.' 
In  consequence,  all  proceedings  toward  a  solution 
through  the  channel  of  diplomacy  came  to  a  temporary 
standstill.  Although  they  have  since  been  resumed,  ^  and 
are  now  pending  in  Washington  ;  yet  their  subsequent 
course  is  hidden  beneath  the  sands  of  official  secrecy. 


1  No.  106.  Let.  Mr.  Magee  to  Mr.  Bayard,  March  20,  1888. 

2  No.  76.  Let  to  Mr.  Pbelps,  Feb.  7,  1888. 

3  No.  78.  Let  Mr.  Phelps  to  Mr.  Bayard,  Feb.  25,  1888. 
•»  No.  81.  Let.  Mr.  White  to  Mr.  Bayard,  April  7,  1888. 
»  No.  83.  Let.  Mr.  Bayard  to  Mr.  White,  April  18,  1888. 
•  No.  84.  Let.  Mr.  White  to  Mr.  Bayard,  April  20,  1808. 

7  No.  87.  Let.  Mr  White  to  Mr.  Bayard,  June  20,  1888. 

8  Report  of  Secretary  Bayard  to  President  Cleveland,  Feb.  13,  1889.     Pre- 
face to  Sen.  Ex.  Doc,  No.  106,  50  Cong.,  2d  Sess. 


-11— 


CHAPTER  II. 

"  You  will  observe,  from  the  facts  given  above,  that  the 
authorities  of  the  United  States  appear  to  lay  claim  to  the 
sole  sovereignty  of  that  part  of  Bering  Sea  lying  east  of  the 
westerly  boundary  of  Alaska,  as  defined  in  the  first  article 
of  the  treaty  concluded  between  the  United  States  and 
Russia  in  1867,  by  which  Alaska  was  ceded  to  the  United 
States,  and  which  includes  a  stretch  of  sea  extending  in  its 
widest  i)art  some  600  or  700  miles  easterly  [westerly  ?]  from 
the  mainland  of  Alaska."* 

Such  was  the  moderate  language  used  by  the  Earl  of 
Iddesleigh,  British  Secretary  of  State  for  Foreign  Affairs, 
in  instructing  the  British  Minister  at  Washington.  Such, 
at  the  outbreak  of  these  troubles,  was  the  view  taken  by  the 
British  Government.  How  shall  we  shield  ourselves  from 
this  apparently  just  criticism  ;  or  how  shall  we  answer  the 
riddle  which  a  Victoria,  B.  C,  paper  presents  to  us?  "A 
nation  disregarding  on  one  coast  the  belt  of  the  sea  literal 
which  constitutes  the  range  belonging  to  coast  defenses,  is 
actually  assuming  on  another  coast  supreme  maritime 
jurisdiction  over  a  waste  of  waters  comprising  half  of  the 
northern  portion  of  a  vast  ocean." 

Before  we  speak  of  the  position  of  the  State  Depart- 
ment itself,  let  us  consider  one  or  two  arguments  unoffi- 
cially advanced  in  support  of  our  Behring  Sea,  policy. 

First,  it  has  been  said  that  we  have  derived  our  right  of 
exclusive  jurisdiction  over  those  waters  from  Russia.' 
This  rests  upon  the  two  suppositions:  first,  that  Russia 
herself  ever  possessed  such  rights,  and  secondly,  that  she 
was  able  to,  and  actually  did,  transfer  them  by  treaty  to 
the  United  States.  To  answer  the  questions  thus  raised 
we  shall  have  to  turn  to  diplomatic  history. 


1  No.  3.  Oct.  30, 1886. 

» No.  17.  Let.  Marquis  of  Salisbury  to  Sir  L.  S,  S.  West,  Sept.  10,  1887. 


-12- 


RussTAN  EroiiTs  IX  TiiK  Beiiuino  Sea. 


In  1821  Russia  first  in'oclaimed  to  the  world  her 
sovereignty  over  the  nortli  Piicilic  Sea.  The  extent  of  the 
dominion  chiimed  is  shown  by  tlie  regulations  published  in 
pursuance  to  the  ukase  of  September  4  of  that  year : 

"Sec.  1.  The  pursuits  of  commerce,  whaling  and  fish- 
ing, and  of  all  other  industry,  on  all  islands,  x^orts  and 
gulfs,  including  the  whole  of  the  northwest  coast  of 
America,  beginning  from  Behring  Strait  to  the  fifty-first 
degree  of  northern  latitude  ;  also  from  the  Aleutian  Islands 
to  the  eastern  coast  of  Siberia,  as  well  as  along  the  Kurile 
Islands  from  Behring  Strait  to  the  south  cape  of  the  island 
of  Urup,  viz,  to  45°  50'  norlhern  latitude,  are  exclusively 
granted  to  Russian  subjects. 

"  Sec.  2.  It  is  therefore  prohibited  to  all  foreign  vessels 
not  only  to  land  on  the  coasts  and  islands  belonging  to 
Russia  as  stated  above,  but  also  to  approach  them  within 
less  than  a  nundred  Italian  niile:^  The  transgressor's  ves- 
sel is  subject  to  confiscation,  along  with  the  whole  cargo." 

It  will  be  noticed  that  Behring  Sea  is  not  alleged  to  be 
a  closed  sea  ;  exclusive  jurisdiction  to  only  a  marginal 
belt  of  one  hundred  miles  is  insisted  upon.  To  be  sure, 
Mr.  Poletica,  Russian  envoy  at  Washington,  declared 
Russia's  right  to  regard  Behring  Sea  as  a  closed  sea,  and 
rested  it  on  reasons  of  bi-lateral  possessions.  But  that 
Russia  did  not  stand  upon  that  right,  is  evident  from  his 
words  : 

"I  ought,  in  the  last  place,  to  request  you  to  consider, 
sir,  that  the  Russian  possessions  in  the  Pacific  Ocean  ex- 
tend, on  the  northwest  coast  of  America,  from  Behring's 
Strait  to  the  fifty -first  degree  of  north  latitude,  and  on  the 
opposite  side  of  Asia  and  the  islands  adjacent,  from  the 
same  strait  to  the  forty-fifth  degree.  The  extent  J  sea  of 
which  these  possessions  form  the  limits  comjirehends 
all  the  conditions  which  are  ordinarily  attached  to  shut  seas 
(mers  fermees),  and  the  Russian  Government  might  conse- 


— i; 


qnently  judge  itself  authorized  to  exercise  upon  this  sea 
the  right  of  sovereignty,  and  especially  that  of  entirely 
interdicting  the  entrance  of  foreigners.  But  it  preferred 
only  asserting  its  essential  rights,  without  taking  any  ad- 
vantage of  localities."  1 

Nevt^rtheless,  Mr.  Adams,  Secretary  of  State,  instantly 
took  up  cudgels  in  defense  of  our  privilege  of  entering 
(!?rr;i  within  the  limit  of  one  hundred  miles.     After  oppos 
ing  the  coast  claim  set  up  in  the  preceding  assertions,  he 
proceeds  thus  : 

"  This  pretension  is  to  be  considered  not  only  with  refer- 
ence to  the  question  of  territorial  right,  but  also  to  thiit 
prohibition  to  the  vessels  of  other  nations,  including  tiiose 
of  the  United  States,  to  approach  within  100  Italian  miles 
of  the  coasts.  From  the  period  of  the  existence  of  the 
United  States  as  an  independent  nation,  their  vessels  have 
freely  navigated  those  seas,  and  the  right  to  navi^jate 
them  is  a  part  of  that  independence.  *  * 
the  vessels  of  our  citizens  from  the  shore, 
ordinary  distance  to  which  the  territorial 
extends,  has  excited  still  greater  surprise." « 

Against  the  mare  clausuin  doctrine  of  the  Russian 
diplomat  he  urged  an  argument,  of  which  a  well-known 
writer  at  that  time  says,  "A  volume  on  the  subject  could 
not  have  placed  the  absurdity  of  the  pretensions  more 
glaringly  before  us :"  ^ 

"With  regard  to  the  suggestion  that  the  Russian  Govern- 
ment might  have  justified  the  exercise  of  sovereignty  over 
the  Pacific  Ocean  as  a  close  sea,  becar  e  it  claims  territory 
both  on  its  Ai .  lean  and  Asiatic  shores,  it  may  suffice  to 
say  that  the  distance  from  shore  to  shore  on  this  sea,  in 
latitude  51°  north,  is  iiot  less  than  90°  of  longitude,  or  4,000 
miles.  "^ 


To  exclude 
beyond  the 
jurisdiction 


1  No.  166.  Let.  Mr.  Poletica  to  Mr.  Adams,  Feb.  28,  1882. 
8  No.  167.  Let.  Mr.  Adams  to  Mr.  Poletica.  March  30,  1822. 
8  North  American  Review,  Vol.  15,  p.  8SJ. 
4  Same  letter. 


—14- 


What  woiilil  Mr.  Adam's  language  have  been,  had  Rus- 
sia possessed  but  one  shore  of  this  tract  of  sea  ? 

Diplomatic  agencies  were  hereupon  set  in  motion  to  har- 
monize these  antagonistic  views.  The  Secretary  of  State 
instructed  our  Minister  to  Russia,  Mr.  Middleton,  regard- 
the  pending  negotiations  that  ' '  the  United  States  can  ad- 
mit no  part  of  these  claims.  Their  right  of  navigation  and 
of  fishing  is  perfect,  and  has  been  in  constant  exercise  from 
the  earliest  times,  after  the  peace  of  178:^,  throughout  the 
whole  extent  of  the  Southern  Ocean,  subject  only  to  the 
ordinary  exceptions  and  exclusions  of  the  territorial  juris- 
dictions. ' "  1  The  outcome  was  the  treaty  of  the  17th  of  April, 
1824.     Its  first  and  fourth  article  regulate  tliis  matter  : 

"AiiT.  1.  It  is  agreed  that  in  any  part  of  the  Great 
Ocean,  commonly  called  the  Pacific  Ocean,  or  South  Sea, 
the  respective  citizens  or  subjects  of  the  high  contracting 
powers  shall  be  neither  disturbed  nor  restrained,  either  in 
navigation  or  in  fishing,  or  in  the  power  of  resorting  to  the 
coasts  upon  points  which  may  not  already  have  been  occu- 
pied for  the  purpose  of  trading  with  the  natives,  saving  al- 
ways the  restri(;tions  and  conditions  determined  by  the 
following  articles." 

"  Akt.  IV.  It  is,  nevertheless,  understood  that  during  a 
term  of  ten  years,  counting  from  the  signature  of  the  pres- 
ent convention,  the  ships  of  both  powers,  or  which  belong 
to  their  citizens  or  subjects,  respectively,  may  reciprocally 
frequent,  without  any  hindrance  wliatever,  the  interior  seas, 
gulfs,  harbors,  and  creeks,  upon  the  const  mentioned  in  the 
preceding  article,  for  the  purpose  of  fishing  and  trading 
with  the  natives  of  the  country."  (State  papers,  Vol.  12,  p. 
595.) 

The  right  confirmed  by  Article  I,  was  secured  also  to 
England  by  the  treaty  of  February  28,  1825. 

It  has  been  urged  that  the  American  contentions  at 
this  time  were  confined  to  the  interdiction  not  of  fishing 
but  of  free  commerce,  and  that  they  had  no  reference  to  the 

»  No.  171,  July  22,  1823. 


-15- 


Belning  Sea.  ^  But  tliern  is  nothing  in  Mr.  Adams  wonts 
above  i  eferved  to  which  limit  their  application  to  commerce. 
And  in  hiS  instructions  to  Mr.  Middleton  we  have  seen  that 
he  distinctly  mentions  "the  right  of  lishing." 

Again,  there  is  nothing  in  the  language  either  of  the 
Russian  ukase  or  of  Mr.  Adams,  or  of  the  resulting  treaty, 
which  would  show  that  the  Rehring  Sea  was  not  intended. 
In  fact  the  ukase  expressly  says,  "  beginning  from  Behring 
Strait."'     So  that  we  must  conclude  with  Lord  Landsdowne 
that  "  It  is  impossible  to  believe  that  when,by  the  convention 
of  1825,  it  was  agreed  that  the  subjects  of  Great  Britain,  as 
one  of  the  contracting  parties,  should  not  be   "  troubled  or 
molested  in  any  part  of  the  ocean,  commonly  called  the 
Pacific  Ocean,  either  in  navigating  the  same  or  in  fishing 
therein,"  any  reservation  was  intended  with  regard  to  that 
part  of  the   Pacific  Ocean  known  as  Behring  Sea.    The 
whole  course  of  the  negotiations  by  which  this  convention 
and  that^between  Russia  and  the  United  States,  of  the  same 
year,  were  preceded — negotiations  which,  as  pointed  out  in 
the  report,  arose  out  of  conflicting  claims  to  these  very 
waters— laoints  to  the  contrary  conclusion."' 

At  the  expiration  of  the  term  of  continuance  of  Article 
IV.,  a  question  arose  as  to  what  rights  remained  under 
Article  I.  of  the  same  treaty.  Mr.  Forsyth,  Secretary  of 
State,  declared  the  meaning  of  the  fourth  article  to  be  the 
extension  of  Article  I,  so  as  to  include  within  its  provisions 
interior  bays,  &c.,occupiedorabout  the  occupation  of  which 
there  might  be  doubt.  Accordingly,  the  expiration  of  that 
article  did  not  affect  the  right  granted  by  Article  I  to  fre- 
quent the  unoccupied  coasts. ' 

Russia  on  the  contrary  declared  the  American  right  to 
frequent  the  interior  bays,  &c.  of  Alaska,  occupied  or  un- 


1  "  American  Rights  in  Behring  Sea,"  Pres.  J.  B.  Angell, 
Nov.,  1889  ;  N.  Y.  Tribune,  March  19,  1890. 

2  No.  117,  Let.  to  Mr.  Stanhope  Nov.  29,1888. 

3  No.  187,  Let  Mr.  Forsyth  to  Mr.  Dallas,  Nov.  8,  1837. 


•Forum"  for 


—16— 

occupied,  to  rest  solely  on  Article  lY,  and  hence  to  be  of 
only  eqniil  duration  J 

A  settlement  of  this  difference  was  never  reached.  And 
so  rested  the  lights  in  these  waters  down  to  the  cession  of 
Alaska  in  18G7.  In  that  treaty  ratified  by  tlie  United 
States  on  May  28,  1867,  Itussia  ceded  to  the  United  States 
a  tract  of  which  : 

"The  western  limit  within  which  the  territories  and  do- 
minion conveyed,  are  contained,  passes  through  a  point  in 
Belli  ing's  Straits  on  the  parallel  of  sixty-five  degrees 
thirty  minutes  north  latitude,  at  its  intersection  by  the 
meridian  which  passes  midway  between  the  islands  of 
Krusenstern,  or  Ignalook,  and  the  island  of  Katmanoff,  or 
Noonarbo(»k,  and  proceeds  due  north,  without  limitation, 
into  the  same  Frozen  Ocean,  The  same  western  limit,  be- 
ginning at  the  same  initial  point,  proceeds  thence  in  course 
nearly  southwest,  through  Beliring's  Straits  and  Behring's 
Sea,  so  ap  to  pass  midway  between  the  northwest  point  of 
the  Island  of  St.  Lawrence  and  the  southeast  point  of 
Cape  Choukotski,  to  the  meridian  of  one  hundred  and 
seventy-two  west  longitude  ;  thence,  from  the  intersection 
of  that  meridian,  in  a  southwesterly  direction,  so  as  to  pass 
midway  between  the  island  of  Attou  and  the  Copper  Island 
of  the  Kormandor^ki  couplet  or  group  in  the  North  Pacific 
Ocean,  to  the  meridian  of  one  hundred  and  ninety-three  de- 
grees west  longitude,  so  as  to  include  in  the  territory  con- 
veyed the  whole  of  the  Aleutian  Islands  east  of  that  mer- 
idian."" 

In  a  sea  so  full  of  islands  as  the  Behring,  a  line  similar 
to  the  one  drawn  above,  is  necessary  to  a  clear  division  of 
the  sovereignty  of  those  islands.  It  avoids  the  tedium  of 
an  enumeration.  Therefore  the  apparent  grant  of  sea 
which  the  drawing  of  such  a  line  effected  ought  not  to  de- 
ceive. 

On  the  other  hand  if  the  apparent  grant  was  intentional, 


1  No  190.  Count  Ncsselrode  to  Mr.  Dallas,  April  27,  '88. 

2  No.  191. 


—17- 


yet  the  elements  of  law  teach  that  no  nation  can  transfer 
larger  rights  than  it  possesses.  And  from  the  foregoing 
bit  of  Russian- American  dii)lomatic  history,  it  is  clear  that 
Russia  succeeded  in  gaining  for  herself  in  Alaskan  waters 
no  more  than  the  jurisdictional  three-mile  belt  allowed  by 
international  law. 

Still  further,  even  if  the  United  States  should  be  willing 
to  stultif  J'  itself  so  far  as  to  concede  that  Russia  had  prior 
to  the  cession  acquired  a  valid  supremacy  in  the  Behring 
Sea  over  against  the  United  States,  yet  the  rights  of  other 
nations  would  remain  unaffected. 


—18— 


CHAPTER    III. 

It  is  also  contended,  possibly  in  ignorance  of  the  inter- 
national liiw  on  the  subject,  that  the  Behiing  Sea  is  a  closed 
sea ;  and  tliat  over  such  a  sea  the  exclusive  sovereignty  of  the 
United  States  must  be  tolerated.  Properly  to  decide  this 
point,  we  shall  need  nn  answer  to  the  general  question, 
What  seas  are  cai)able  to-day  of  inclusion  within  national 
jurisdiction  ?  What  seas  are  free,  what  seas  are  closed  ? 
International  laAv  alone  can  give  us  this  answer. 


Mare  Liheuum  vs.  MAUii  Clausum. 

"Theie  is  no  writer,  there  is  no  government  which 
would  dream  at  this  day  of  renewing  these  pretentions  of 
another  epoch."  ^ 

With  this  language.  Ortolan,  the  great  writer  on  mari- 
time diplomacy,  disposes  of  the  pretense  of  sovereignty 
over  the  high  seas. 

I  shall  therefore  not  feel  bound  by  patriotic  motives  to 
incur  with  my  country  the  stigma  of  that  remark.  But, 
in  my  inquiry  into  the  status  of  the  seas,  I  shall  begin,  at 
that  time  when  "Le  principe  de  la  liberte  des  mers,  tant 
combattu  par  I'Angleterre,  est  sorti  du  champ  des  discus- 
sions theoriques  pour  entrer  triomphalement  dans  le  do- 
maine  pratique  de  toutes  les  nations.  "2 

We  may  fix  this  time  roughly  at  the  appearance  of 
Grotius  "Mare  Liberum,"  in  1609.  Venice  had  for  cen- 
turies maintained  her  supremacy  over  the  Adriatic.  Spain 
and  Portugal  had,  on  the  foundation  of  naval  prowess  and 
Papal  grant,  set  up  an  extensive  claim  in  the  Pacific  and 
Indian  oceans.  England  ruled  mistress  of  her  surrounding 
seas.    And  Holland  stretched  her  rod  of  dominion  over  the 


'  Ortolan,  Ragles  I.,  p.  137. 

•  Calvo  Le  Droit  International,  I.,  §  311. 


—19—, 

North  Sea.  These  pretensions  had  tlieir  juristic  champions 
in  Father  Paul  Sarpi,  who,  in  1G70,  wrote  a  vindication  of 
the  rule  of  Venice  over  the  Adriatic  ;  and  Selden  (Mare 
Clausum,  1035),  and  Albericus  Gentilis  (Advocatio  His- 
panica,  1613)  who  succeeded  in  strenf^theniiig  for  a  few 
years  the  crumbling  claims  of  England.  *  But  this  mist  of 
selHsh  national  pretensions  hanging  over  the  high  seas  soon 
dispersed  before  the  x^iercing  light  of  international  princi- 
ple. Grotius,  Vattel,'  Puffendorf,'  and  Bynkershoek,* 
have  established  so  firmly  the  law  of  the  freedom  of  the 
ocean,  that  it  can  be  said  with  strict  truth  : 

"  Aujourdhui  les  discussions  sur  le  domaine  et  sur  I'em- 
pire  des  mers,  dont  nous  venons  de  tracer  le  tableau,  sont 
reloguees  dans  le  pur  domaine  de  rhistoire.""* 

But  the  grasp  by  single  nations  of  certain  portions  of 
the  sea  was  so  firm  that  "only  by  removing  one  finger  at  a 
time  has  the  union  of  nations  finally  forced  it  to  relax. 

] .  England  particularly  thought  that  her  sway  over  the 
four  surrounding  seas  furnished  an  instance  of  might  mak- 
ing right.  This  claim,  backed  by  the  authority  of  Albericus 
Gentilis,  *  she  asserted  over  the  British  Channel,  from  the 
island  of  Quessant,  even  after  she  had  given  up  the  Duchy 
of  Normandy  and  Calais,  "  a  circumstance,"  says  Philli- 
more,  "  of  considerable  weight  with  respect  to  her 
claim.'"'  Elizabeth  seized  some  Hanseatic  vessels  even  off 
Lisbon,  for  passing  without  permission  through  the  sea 
north  of  Scotland.  * 

This  i)retension  on  the  part  of  England  consisted  chiefly 
of  the  right  of  exclusive  fishing  and  of  exacting  from  com- 


1  Wheatoa  Elements,  pp.  267  and  268. 
«  Droit  des  Gens,  1758. 

•  De  Jure  Naturae  et  Gentium,  1672. 

♦  De  Dominio  Maris,  1702. 
6  Ortolan,  I.,  p.  187. 

&  Advocatio  Hispanica,  Lib.  I.,  Cap.  viii 
1  Phillimore's  Commentaries  I.,  §  181. 
8  Id. 


—20— 

mon  vessels  the  lioninfre  of  salute.'     But  it  has  never  been 
sanctioned  by  general  acquiescence. ' 

Holland  held  out  stienuously  a<;ainst  it,  ;ind  Crom\v»'ll 
was  forced  to  make  war  upon  her  to  C(nni)el  its  acknowl 
edgnient.3  Yet  it  is  true  that  by  ])ayments  and  by  taking 
out  licenses  to  Jish,  the  Dutdi  occasionally  admitted  these 
claims,  and  by  the  Treaty  of  Westminster,  1074,  they  con- 
ceded in  the  ami)lest  manner  to  the  English  flag,  the  hom- 
age sought.  Sir  \V.  Tem])le,  who  negotiated  this  treaty, 
sjieaks,  however,  of  the  right  hereby  conceded  to  Great 
Britain  as  one  "which  had  never  yet  been  yielded  toby 
the  weakest  of  them  that  I  remember  in  the  whole  course 
of  our  pretence  ;  and  had  served  hitherto  but  for  an  occa- 
sion of  quarrel,  whenever  we  or  they  had  a  mind  to  it,  upon 
either  reasons  or  conjectures."'' 

Franc!e  never  formerly  acknowledged  the  British  claims. 
Tn  1689,  Louis  XV.  i)ublished  an  ordinance  forbiding  his 
naval  officers  to  give  the  demanded  salute.  This  insult  to 
the  British  fliig  was  alle|rged  by  William  III.,  in  his  mani- 
festo of  27th  May,  1089,  as  one  of  the  causes  of  war  with 
France.  ^ 

Yet  since  that  i)roclamalion.  Great  Britain  has  never 
again  insisted  upon  any  such  pretension.  And  even  in  the 
days  of  Charles  II.  and  James  II.,  Sir  Leoline  Jenkins, 
expounder  of  all  international  law  to  those  monarchs,  had 
refused  to  assert  Great  Britain's  dominion  into  the  sea  be- 
yond a  line  drawn  from  headland  to  headland,  comprising 
what  are  called  the  Kings  Chambers. 

2.  Denmark  has  from  the  earliest  days  jealously  guarded 
the  three  entrances  to  the  Baltic,  the  Greater  and  Lesser 
Belt  and  the  Sound  ;  and  exacted  toll  from  passing  com- 
merce,*    The  Danish  jurists  rested  this  right  upon  imme- 

1  Phil.  I.,  §183. 

2  Whcaton,  p.  263. 

3  Id.,  §  182 ;  Comte  Gardens,  Traile  de  Diplom.,  t.  i.,  p.  402. 

4  Phil.  I.,  1 184. 
s  Id.,  §  186. 

6  Wheaton,  p.  264. 


—21— 

morial  prescription  ami  trotities.  The  earliest  of  theye 
treaties  is  that  with  tlie  Ilaiiseatic  K»'i)ul)]ics  in  inr»8  ;  and 
tiie  right  was  subsecpiently  confiriiicd  bj'  trt'alie.s,  with 
all  the  maritime  i)owers.  Altlumgh  by  the  treaty  of  Roes- 
kild,  1058,  the  Province  of  Scania  was  ceded  to  Sweden, 
yet  Denmai'k  preserved  her  dominion  over  these  straits  in- 
tiwt  by  tlie  payment  to  Sweden  of  a  compensation.  * 

Underlying-  Denmark's  jnrisdiction  over  the  passages 
which  form  the  key  to  Mie  Balti(!,  was  her  just  right  to  re- 
niunerati(m  for  tnaintaining  along  these  coasts  lighthouses 
and  buoys.*  To  this  element  of  the  claim  is  undoubtedly 
due  the  f;ict  that  not  until  18.")7  were  these  Danish  straits 
recognized  as  free.  The  great  European  powers  then  jiaid 
to  Denmai'k  a  gross  sum  for  the  pei'[)etual  nuiintainance  of 
proper  coast  and  channel  demarcation.  ^  And  on  Ai)ril  11, 
1857,  the  same  i)rivilege  was  secured  to  the  United  States 
by  the  i)ayment  of  $;iU!J,011.* 

}3ut  at  the  beginning  of  the  Seventeenth  Century,  Den- 
mark had  put  forward  much  broader  claims  thnn  those  just 
mentioned.  In  1002,  Queen  Elizabeth  sent  to  Copenhagen 
an  embassy  to  adjust  generally  the  relations  between  the 
two  countries.     The  instructions  given  it  were  these  : 

"  And  you  shall  further  declare  that  the  Lawe  of  Nations 
allovveth  of  fishing  in  the  sea  everywhere,  *  *  *  so  if 
our  men  be  barred  thereof,  it  should  be  by  scmie  contract." 

"Sometime,  in  speech,  Denmark  claymeth  propertie  in 
+hat  sea,  as  lying  between  Norway  an^  Island,— both  sides 
m  the  dominion  of  oure  loving  brother  the  King  ;  supposing 
thereby  that  for  the  propertie  of  a  whole  sea,  it  is  sufficient 
to  have  the  banks  on  both  sides,  as  in  rivers.  Whereunto 
you  may  answere,  that  though  property  of  sea,  in  some 
small  distance  from  the  coast,  maie  yeild  some  oversight 
and  jurisdiction,  yet  use  not  princes  to  forbid  passage  or 


1  Wheaton,  p.  265  ;  Phil.  I.,  ^5  179. 

3  Twlss'  Rights  and  Duties  of  Nations  in  Time  of  Peace,  g  179. 
8  Phil.  I.,  §  179. 

4  Wheaton,  p.  266,  note. 


—22- 


fisliing,  as  is  well  seen  in  our  sens  of  England,  and  Ireland, 
and  in  the  Adriaticke  Sea  of  the  Ve)i<Hans,-wheYe  aa  e  in  ours, 
and  they  in  theirs,  have  proi)ertie  of  command  ;  and  yet  we 
neither  in  ours,  nor  they  in  theirs,  oiler  to  forbid  fishing, 
much  lesse  passage  to  ships  of  merchandize  ;  the  which  by 
Lawe  of  Nations  cannot  be  forbidden  ordinarilie  ;  neither  is 
it  to  be  allowed  that  propertieof  sea  in  whatsoever  distance 
is  consequent  to  the  banks,  as  it  hapneth  in  small  rivers. 
For  then,  by  like  reason,  the  hair  of  every  sea  should  be 
appropriated  to  the  next  bank,  as  it  hapneth  in  small 
rivers,  Avhen  the  banks  are  proper  to  divers  men  :  w^hereby 
it  would  follow  that  no  sea  were  common,  the  banks  on 
every  side  being  in  the  projiertie  of  one  or  other  ;  where- 
fore there  remaineth  no  color  that  Benmarke  may  claim  any 
propertie  in  those  seas,  to  forbid  passage  or  iishing 
therein.'' 1     *    * 

The  constant  opposition  of  both  Holland  and  England  to 
these  pretensions  of  Denmark,  sufficed  to  reduce  them  so 
late  as  the  eighteenth  century  only  to  the  contracted  form  of 
exclusive  fishing  witliin  fifteen  miles  of  Iceland.''  The 
capture  in  1740  by  a  Danish  man-of-war  of  Dutch  vessels 
fishing  within  the  prescribed  limits,  and  their  subsequent 
condemnation  at  Copenhagen,  led  to  a  vehement  protest  on 
the  part  of  the  States  General.  ^  In  the  Remonstrance  to  the 
Danish  Government  passed  April  17,  1741,  they  declared 
that  the  sea  being  free,  it  was  proper  for  every  one  to  fish 
in  it,  "i)ourvu  qu'il  ne  fasse  pas  d'une  maniere  indue." 
Fishing  within  four  German  miles  of  the  coast  was  not  such 
a  "maniere  indue;""  for  although  Denmark  might  mak^i 
such  a  municipal  prohibition  binding  on  her  own  subjects, 
she  could  not  convert  it  into  an  I  liter  national  obligation.  * 
3.  The  peculiar  status  to-day  of  the  Dardanelles,  Bos- 
phorus  and  Marmora  Sea,  rests  on  treaty  regulation.    In 


1  Rymer  Fotd.,  t.  xvi.,  pp.  433-4. 

»  Phil.  I.,  §190  and  191. 

«  id.  I,  §  192. 

♦  Martens  Causes  Celfibres,  Vol.  I.,  p.  359. 


—23— 

the  days  when  the  shores  of  the  Black  Sea  were  entirely 
within  her  domain  the  Porte  was  entitled  to  the  exclusive 
exercise  of  jurisdiction  over  these  marine  avenues.  But 
when  Russia  obtained  a  foothold  on  the  Black  Sea,  she  ac- 
quired by  international  law  an  easement  of  commuiucc;'^ion 
with  the  Mediterranean.  Owing,  however,  to  the  non-rec- 
ognition of  Christian  law  by  the  Turks,  this  right  was  not 
granted  to  Russia  until  the  treaty  of  1774.  Subsequent 
treaties  with  Austria  in  1784,  with  Great  Britain  in  1799, 
with  France  in  1802,  and  with  Prussia  in  1806,  secured  to 
those  powers  the  same  free  navigation  for  merchant 
vessels.  1  So  in' 1829  by  the  Treaty*  of  Adrianople  the  same 
privilege  was  conceded  to  all  Europeiin  nations  in  amity 
with  the  Porte. 3  On  February  25,  1862,  the  rights  of  the 
most  favored  nations  with  regard  to  passage  through  these 
Straits  were  accorded  to  the  United  States.  ^ 

But  Turkey  still  claims  the  power  to  exclude  from  these 
seas  foreign  war  ships.  Immemorially  asserted,  this  claim 
has  been  formally  sanctioned  by  the  European  i^owers  in 
the  treaties  at  London,  July  13,  1841,'*  and  at  Paris  of 
March  30,  1856. » 


There  is  an  insidious  form  in  which  the  doctrine  of 
closed  sea  still  makes  it  appearance  to-day.  Great  store  is 
laid  upon  it  by  certain  controversialists  in  the  supi^ort  of  our 
pretensions  to  the  Behring  Sea  seal  fisheries.  It  is  that  the 
sea  may  be  prescribed  against.  It  lurks  usually  in  the 
timid  and  specious  pleas  that  our  right  is  the  best  right, 
and  that  to  us  belongs  the  regulation  merely  of  fishing. 
But  it  assumes  a  bolder  front  when  it  bases  itself  upon 
Vattel : 


1  Twiss,  §  180  ;  Wheaton,  p.  263. 

•  Wheaton,  p.  263  ;  Martens  Nouveau  Recueil,  torn,  viii.,  p.  148, 

•  Wheaton's,  p  234,  note.    Wheaton'.  HiHtory  of  Law  of  Nations,  683-5. 

•  Martens  N.  R.  Gun.  II.,  p.  128  ;  Wheaton,  p.  263. 

»  Martens  N.  R.  Gen.  T.  XV.,  p.  782  ;  Wheaton,  p.  264,  note. 


-24— 

"  Qn'une  nation  en  possession  de  la  navigation  et  de  la 
peche  en  certain  parages,  y  piotende  nn  droit  exclnsif  et 
defende  a  d'autres  d'y  prendre  part ;  si  celles-ci oboissent  a 
cette  defense,  avec  de  marqnes  suffisantes  d' acquiescement, 
elles  renoncent  tacitenient  a  lenr  droit  en  faveur  de  celle- 
la,  et  lui  en  otablissent  un  qn'elle  pent  logitimement  sou- 
tenir  contre  elles  dans  la  suite,  surtout  lorsqn'il  est  con- 
fir  me  par  un  long  usage." ^ 

And  esi>ecially  wlien  it  triumphantly  adds  that  Philli- 
more  quotes  this  passage  with  the  remark  : 

"The  reasoning  of  Vattel  does  not  seem  to  be  un- 
sound. "^ 

Lord  Stowell  also  lent  .->ome  aid  to  this  position  in  the 
case  of  the  Ihcee-dfebrocders  v>'\nin  he  said:  "Portions  of 
the  sea  are  prescribed  for."^ 

The  fact  is  that  these  words  of  Vattel  do  not  support 
the  doctrine  of  prescription  at  all,  but  refer  to  another  mat- 
ter. Wheaton  commenting  upon  them  in  connection  with 
the  doctrine  of  common  use  in  the  seas,  says  ; 

"  The  authority  of  Vattel  would  be  full  and  explicit  to 
the  same  purposes,  were  it  no^"  weakened  by  the  concet.sions 
that  though  the  exclusive  right  of  navigation  or  fishery  in 
the  sea  cannot  be  claimed  by  one  nation  on  the  ground  of 
immemorial  use,  now  lost  to  others  by  non-user  on  the 
principle  of  prescription,  yet  it  may  be  thus  established 
where  the  nou-user  assumes  the  nature  of  a  consent  or  tacit 
agreement,  and  thus  becomes  a  title  in  favor  of  one  nation 
against  another."  * 

From  this  criticism  it  becomes  clear  that  uot  the  long 
continued  user  or  non-user  affects  the  right,  but  the  obedi- 


1  Vattel.  Le  Droit  df  ^  dtcn-i,  T.  1;  1.  i.,  cxxiil,  S  28o. 

«  Phil.  I..  S  176. 

8  3  Rob.,  p.  329  ;  Twiss,  g  175,  cites  this  opinion  without  comment ;  his 
reference  here  to  Story  in  "The  Schooner  Fame,"  3  Mason,  p.  150  is  an  error  ; 
it  is  intended  for  the  preceding  sentence. 

4  Wheaton  p.  3«8. 


-25- 


ence  of  other  nations  to  the  prohibition  of  one,  accompa- 
nied by  what  Vatrel  calls  "snfRcient  marks  of  acquies- 
cence." But  there  is  no  reason  why  nations  should  not 
waive  their  privileges  in  this  manner.  ^  To  deny  it  would 
be  to  assert  that  international  rights  can  be  varied  only  in 
writing,  whereas  to  such  an  open  and  unequivocal  acknowl- 
edgment might  well  be  given  the  binding  effect  of  a  treaty. 
And  history  contains  many  illustrations  of  such  treaty 
concessions.  A  prominent  one  to-day  is  the  agreenvsnt 
with  China  by  which  Great  Britain  has  jurisdiction  over 
British  subjects  "  being  within  the  dominions  of  the  Em- 
peror of  China,  or  being  within  any  ship  or  vessel  at  a  dis- 
tance of  not  more  than  one  hundied  miles  from  the  coast  of 
China."  ^ 

But  such  a  concession  must  not  be  thought  so  much  to 
make  property  in  the  ocean  possible, as  to  the  rest  for  its 
validity  upon  the  bona  lides  of  the  nation  making  it  and 
the  consequent  estoppel  which  it  works.  ^ 

The  authority  on  this  point,  however,  even  of  these 
writers  is  weak.  Phillimore  confesses  of  this  i)rinciple  that 
"the  case  for  its  application  is  not  often  likely  to  occur." * 
And  Lord  Stowell  adds  that  "  the  general  presumption  cer- 
tainly bears  strongly  against  such  exclusive  rights,  and  the 
title  is  a  matter  to  be  established  on  the  part  of  those 
claiming  under  it  *  *  *  by  clear  and  competent 
proof."* 

But  on  the  contrary  when  he  speaks  against  prescrip- 
tion i)roper  in  the  sea,  there  is  no  uncertainty  in  Philli- 
more's  language: 

"  The  right  of  navigation,  fishing  and  the  like,  upon 
the  open  sea,  being  jura  'inerce  facultatls,  rights  which  do 
not  require  a  continuous  exercise  to  maintain  their  val- 


1  Phil.  I.,  §  173, 

5  Papers  presented  to  Parliament  1853. 
•  Ulpian  Dig.,  L.  viii.,  t.  iv.,  leg.  13. 

4  Phil.  I.,  §176. 

6  The  Twee  Gebroedcrs,  8  Rob.  p.  889. 


-26— 


idity,  but  which  maj  or  may  not  be  exercised  according  to 
the  free  will  and  pleasure  of  those  entitled  to  them,  can 
neither  be  lost  by  non-nser  or  prescribed  against,  nor  ac- 
quired to  the  exclusion  of  otliers  by  having  been  immemo- 
rially  exercised  by  one  nation  only.  No  presumption  can 
arise  that  those  wlio  have  not  hitherto  exercised  such 
rights,  have  abandoned  the  intention  of  ever  doing  so."  ^ 

Calvo  3  recognizes  the  temptation  which  the  proximity 
to  the  coast  of  "  fish,  oysters  and  other  shell-fish  "  affords 
to  nations,  to  extend  their  sovereignty  beyond  the  three- 
mile  limit.  Yet,  instead  of  permitting  such  an  extension, 
especially  when  supported  by  long  use,  he  distinctly  says  : 
"  De  pareilles  derogations  aux  principes  universellement 
reconnus  *  ont  besoin,  *  pour  devenir  obligatoires,  d'etre 
sanctionnees  par  des  conventions  expresses  et  ecrites." 

The  reason  which  fiows  from  the  nature  of  prescription, 
however,  is  sufficient  to  establish  the  point  in  question,  with- 
out the  aid  of  authority.  Unlike  adverse  possession  or  lim- 
itation, prescrijition  rests  for  its  validity  on  a  presumed  prior 
grant.  Now  in  International  Law  there  is  no  room  for 
such  a  presumption.  National  archives  are  not  so  sus- 
ceptible of  oblivion  and  destruction  as  to  call  it  into  exist- 
ence. 

On  the  other  hand,  such  exact  and  artificial  ideas  as 
adverse  possession  and  limitation  not  only  as  a  fact  have 
no  place  in  International  Law,  but  are  utterly  inconsistent 
with  such  undeveloped  legislative  and  administrative 
organs  as  are  the  International. 


m 
t( 
w 
a 

t] 
e 

S' 

b 
a 

r 
I 

c 

t 
1 

( 


1  Phil.  I,  §  174, 
*§301. 


—27- 


CHAPTER  IV. 


Exceptions  to  the  Rule  ob'  Mare  Libeuum. 


Yet  the  welfare  and  safety  of  nations  has  always  de- 
manded that  certain  portions  of  the  sea  slioiild  be  subject 
to  their  dominion.  This  principle  has  existed  side  by  side 
with  that  of  the  feodom  of  the  seas.  By  the  interaction 
and  attrition  of  these  two  forces  in  the  chaotic  rights  of 
the  sea,  there  has  been  evolved  the  law  on  maritime  sover- 
eignty of  to-day. 

In  general,  whenever  the  reasons  for  the  freedom  of  the 
sea  cease,  the  law  ceases.  These  reasons  are  given  by  the 
best  writers  as  two,  *  and  are  tersely  expressed  by  Ortolan, 
as  follows : 

"  II  n'yaqne  deuxraisons  decisives  sans  replique,  I'une 
physique,  materielle,  1' autre  morale,  purement  rationelle. 
L'impossibilite  de  lapropriete  desmers  resultedela  nature 
de  cet  element,  qui  ne  pent  etre  possede  et  qui  sert  eb^en- 
tiellement  aux  communications  des  hommes  *  *  L'im- 
possibilite de  r  empire  des  mers  resulte  de  I'egalite  des 
droits  et  de  I'independance  reciproque  des  nations."' 

The  portions  of  the  sea  which  are  thus  regarded  as 
falling  outside  the  pale  of  these  objections  are  : 

A.  Gulfs  and  bays. 

B.  Enclosed  seas  {inar'ia  clausa). 

C.  Straits, 

D.  Marginal  belt. 

These  divisions  include,  of  course,  all  similar  forma- 
tions of  the  coast  line,  although  called  by  other  names. 

Within  certain  limits,  which  we  shall  now  study,  such 
bodies  of  water  are  subject  to  national  jurisdiction. 


1  Wheaton,  p.  269. 

2  Ortolan  I,  p.  113. 


Sommaire,  de  ch.  7. 


—28— 


A. — Gulfs  and  Bays. 

Measuring  these  against  the  two  objections  to  sover- 
eignty over  the  liigh  sea,  Wheaton  concluclGs  that  the  lat- 
ter have  no  application.  For,  says  he,  "  the  State  possess- 
ing the  adjacent  territory  by  which  these  waters  are  partially 
surrounded  and  inclosed,  has  that  i)hysical  power  of  con- 
stantly acting  upon  them,  and,  at  the  same  time,  of  ex- 
cluding at  its  pleasure,  the  action  of  any  other  State  or 
person  which  *  *  constitutes  possession.  These  waters 
cannot  be  considered  as  having  been  intended  by  the 
Creator  for  the  common  use  of  all  mankind,  any  more  than 
the  adjacent  land    *    *'  "  ^ 

There  is  no  doubt  then  that  a  gulf  does  not  fall  under 
this  head,  irrespective  of  the  breadth  of  its  communica- 
tion with  the  sea,  although  Poraeroy  asserts  this  to  be  the 
pretension  of  Great  Britain  to  her  own  coasts. "  (I  do  not, 
however,  think  this  to  be  a  correct  statement  of  England's 
attitude,  as  will  later  appear.) 

On  the  other  hand,  there  is  no  warrant  for  such  a  nar- 
row limit  as  set  by  Martens  :*  "  Surtout  en  tant  que  ceux- 
ci  ne  passent  pas  la  largeur  ordinaire  des  rivieres,  ou  la 
double  portee  du'^cannon."  Nor  for  the  vague  definition 
of  Grotius  :^  "  Mare  occui)are  potuisse  ab  eo  qui  terras 
ad  latus  utrumque  possideat,  etiamsi  aut  supra  patet  nt 
sinus,  aut  sux^ra  et  infra  ut  f return,  dummodo  non  ita 
magna  sit  i)ars  maris  ut  non  cum  terris  comparata  portio 
earum  videri  possit.""* 

"  The  real  question    *    *    is,  whether  it  be  within  the 
physical  competence  of  the  nation,  possessing  the  circum- 


1  Wheaton,  p.  270. 

2  Lectures  on  International  Law.    Pomeroy,  §  147. 

3  Droit,  Lib.  ii,  c.  i,  8  40. 

4  Lib.  ii,  c.  iii,  S  8. 
Phil.  I,  §  200. 


—29— 

j:icent  lands,  to  exclude  other  nations  from  th^  whole  por- 
tion of 'the  sea  so  surrounded."  ^ 

The  principle  here  then  may  be  stated  in  VatteVs  terse 
expression  :  "  Une  bale  dont  on  pent  defendre  T  entree, 
l>eut  6tre  occupoe  et  soumise  anx  lois  du  souverain."  ^ 

On  authority  it  is  immaterial  whether  this  defense  be 
natural  or  artificial'— whether  the  mouth  be  blocked  by 
"islands,  banks  of  sand  or  rocks"*  or  swept  "by  the 
cross-fire  of  cannons."'. 

So  that  now  it  is  "re*  adjmUcata  that  the  only  ques- 
tion is  whether  a  given  sea  or  sound  is,  in  fact,  as  a  matter 
of  politico-physical  geography,  within  the  exclusive  juris- 
diction of  one  nation." « 

But  this  limit  of  the  mouth  of  an  inner  gulf  or  bay, 
i.bove  set  fortli,  is  in  the  case  of  a  particular  country  liable 
to  be  extended  or  contracted,  according  as  that  country 
holds  or  rejects  the  doctrine  of  "headlands."  This  doc- 
trine will  be  discussed  under  "The  Marginal  Belt." 

B. — Endorsed  Seas. 

These  are  the  seas  which  the  territory  of  one  or  more 
nations  eMtirely  surrounds.  Ortolan  is  very  particular 
about  the  absolutely  close  character  of  this  territorial  cir- 
cumvention. "  Un  droit  exclusif  de  domaine  et  de  souve- 
rainete  de  la  part  d'une  nation  sur  une  telle  mer  n' est  incon- 
testable qu'autant  que  cette  mer  est  totalement  enclavee 
dans  le  territoire  de  telle  sorte  qu'elle  en  fait  partie  inte- 
i?rante,  et  qu'elle  ne  pent  absolument  servir  deliende  com- 
munication et  de  commerce  qu'entre  les  seuls  citoyens  de 


1  Phil.  I,  §  200. 

8  Vattel  Le  Droit,  &c.,  t.  i,  1.  i.   xxiii.   8  291.      See  also  Phil.  I,  §  200  ; 
Klilber,  Droit  des  Geus,  §  130  ;  Twiss,  §  174. 

»  Ortolan,  §  145.  Martens,  Primae  Lineae  Juns  Gentium.  L.  IV.  c.  IV.  b. 

110. 

*  Calvo  I,  §  190. 

•  Id. 

«  Dana's  Wheaton,  270.    Note. 


-80- 

cette  nation."  1  Thougli  perhaps  Twiss  is  more  exact  in 
his  definition  of  a  closed  interior  sea,  when  he  says  that  it 
"  is  entirely  enclosed  by  the  territory  of  a  nation,  and  has 
no  other  communication  with  the  ocean  than  by  a  channel, 
of  which  that  nation  may  take  possession.  "^ 

The  Black  and  Caspian  Seas  are  the  usual  illustrations 
of  this  kind  of  sea. »  The  former,  however,  by  the  treaty 
of  Paris,  in  ISoO,  contirming  x>i"evious  treaties,  has  been 
made  free.  ^ 

Seas  land-locked,  though  not  entirely  surrounded  by 
land,  like  the  Baltic  Sea,  fall  under  the  same  rule.  8  But 
the  dominion  in  this  case  may  be  called  qualified  rather 
than  absolute,  for  of  course  the  doctrine  of  innocent  use  by 
other  nations  ai)plies  to  these  waters. « 


C. — Straits. 

The  only  question  which  can  arise  here,  is  in  the  case 
of  straits  which  connect  two  free  seas.  Straits  leading  into 
an  inner  bay,  or  enclosed  sea,  are  subject  to  the  same  rules 
discussed  in  connection  with  those  bodies  of  water.  "> 

There  are  two  extreme  theories  about  straits  where  both 
banks  belong  to  one  and  the  same  nation,  and  when  they 
join  two  open  seas.  One  is  that  be  they  never  so  narrow  and 
capable  of  possession,  yet  they  are  not  subject  to  national 
domination.  The  other,  that  without  regard  to  their 
width,  or  defensibility,  they  fall  under  the  jurisdiction 
of  the  bordering  country.     The  first  view  is  held  by  Calvo, « 


^  Ortolan,  I,  §  147. 

»  Twiss,  §  174, 

8  Phil.,  I,  g  205. 

*  Pomeroy,  §  143. 

"  Tomeroy  §  143,  Phil.  I  §  206. 

«  Ortolan,  I,  p.  147  ;  Pomeroy,  §  143. 

»  Calvo.  I,  §  191. 

8  I.  §  191. 


—31— 

Orrolan,!  Rayneval,  Pomeroy,^  and  Wheaton^  ;  the  sec- 
ond by  Pliillimore*  and  Pult'endorf . "  There  is  also  a  third 
view,  represented  by  J.  L.  Kliibero  Pinheiro-FeiTeira 
Twiss'  and  Martens/  which  makes  even  here  eapabiity  of 
defense  tl.e  test  of  sovereignty.  Accordingly  those  straits 
would  be  free  in  which  a  ship  passing  along  the  centre  is 
beyond  the  range. of  cannon.' 

The  reason  for  the  iirst  rule  is  best  expressed  by  Kay- 
neval :  "Si  1' usage  de  ces  mers  et  libre,  la  communication 
doit  I'etre  egalement ;  car  autremHut  la  liberte  de  ces 
memes  mers  ne  serait  qu'  une  chimere.''  ^  ^ 

"  It  is  not  sufficient,  therefore,"  says  Ortolan,  "  In  or- 
der that  property  in  a  strait  may  be  attributed  to  a  nation, 
mistress  of  its  shores,  to  say  that  in  fact  the  strait  is  m  t he 
power  of  this  nation  ;  that  it  has  the  means  to  control  the 
passage  by  its  artillery,  or  by  every  other  mode  of  action 
or  defense.  *  *  The  material  obstacle  to  proprietor- 
ship being  removed,  there  always  remains  the  moral  obsta- 
cle, the  essential  and  inviolable  power  of  peoples  to  com- 
municate with  each  other."  ^^ 

But  this  view  concedes  to  the  bordering  State  the  right 
to  charge  such  tolls  as  shall  compensate  it  _  for  light- 
houses, buovs  and  pilots.  i»  And  subjects  ships  passing 
under  the  cannon  of  that  country  to  such  reasonable  regu- 
lations of  navigation  as  it  may  make.  ^ » 


1  I,  p.  146. 
a  §  139. 

3  P.  273.  §  190.,  . 

4  I,  §  189. 

6  Dc  Jure,  L.  IV,  C,  V,  S  8. 

6  Droit  des  gens  raodcrne.     Ed.  1861,  ^8  130  and  131. 

7  §  174. 

ONoIJs'of'pLlo'Ferreiraand  Ch.  Verge  on  De  Martens.  Droit. &c. . 

Vol.  I,  p.  147.  .  „  - 

10  Inst,  du  droit  de  la  nature  et  des  gens.  Liv  2  Chap^  »,  5?  '■ 

11  Ortolan,  I.  p.  146.    See  also  Wheaton,  p.  272.  §  190. 

12  Grotius.  L.  II,  Ch.  Ill,  §  4. 

18  Ortolan,  I,  p.  146  ;  Bluntschli.  Vol.  IV,  t)  <J10- 


-32- 


The  second  :incl  third  rules  are  biiaed  on  the  safety  of 
the  bordurnig  nation.'  They,  in  turn,  mitigate  iheir  rigor 
by  adopting  the  doctrine  of  wliat  Vuttel  calls  "  innocent 
use."  a 

"  One  must  remark  in  particuUir,"  he  says,  "  with  re- 
spect to  straits,  that  when  they  serve  for  a  communication 
between  two  seas,  the  navigation  of  which  is  common  to  all 
nations,  or  to  several,  that  nation  which  possesses  the 
strait  cannot  refuse  passage  thereon  to  the  others,  i^rovidcd 
that  such  passage  be  innocent  and  without  danger  to  her. 
In  refusing  it  without  just  reason,  she  would  deprive  that 
nation  of  an  advantage  which  is  accorded  to  her  by  nature  ; 
and  still  further,  the  right  of  such  passage  is  a  residue  of 
the  primitive  common  rights."^ 

I  am  of  opinion  with  Poraeroy,  however,  that  "  Any 
apparent  difliculty  or  discrei)ancy  will  vanish  when  we  con- 
sider the  various  kinds  and  degrees  of  rights  which  a  na- 
tion may  exercise  over  such  waters.  *  *  It  can  hardly 
be  said  of  any  such  strait,  even  though  it  be  so  wide  as  not 
to  be  commanded  from  tiie  shores,  that  the  right  to  fish,  or 
to  traverse  with  armed  ships,  as  well  as  with  ships  of  com- 
merce, is  given  by  the  general  law  to  all  peoples  ;  while  at 
the  same  time,  it  can  be  said  of  few  or  none,  that,  inde- 
pendent of  convention,  the  innocent  use  for  purposes  of 
traffic  and  intercommunication  is,  or  may  be,  forbidden."* 
So  that  out  of  all  this  discussion  we  get  as  a  principle 
that  a  nation  owning  both  sides  of  a  strait  connecting  two 
free  seas,  has  the  property  in  or  dominion  over  such  strait, 
subject,  however,  to  an  easement  of  passage,  or  right  of  way 
in  other  nations. 


Regarding  the  three  bodies  of  water  just  discussed, 
gulfs,  enclosed  seas  and  straits,  there  exists  a  singular  un- 

1  Vattcl,  Des  Detroits  en  particuller,  L.  I,  Ch.  XXIIl,  8  298. 

2  Twiss,  §  174. 

3  Jd. 

*  §  139. 


—33— 

ccitainty  among  tlie  writers  as  to  whether  a  division  of  their 
shores  aniong  several  nations  afTects  their  close  character. 
Piill'endorf  dechkres  8\veei)in<i,ly  :  "  Quod  si  autem  diversi 
popiili  fretinn.aut  sinuni  aciiolaiit,  eoriim  imperia  pro  lati- 
tiidiueterrarum  ad  medium  usque  ejusdempertinere  intel- 
ligeiitur."  »  Twiss'  and  Phillimores  repeat  the  statement 
in  regard  to  straits  on  Puftendorfs  authority.  But  as  to 
straits  we  have  good  authority  for  tiie  opposite  yiewS  and 
there  is  certainly  no  reason  wliy  the  marine  jurisdictional 
\w\t  of  a  nation  should  be  any  more  extended  in  a  strait 
than  in  the  open  sea. 

As  to  bays  and  enclosed  seas,  however,  the  view  of  Puf- 
fendorf  is  probably  the  correct  one.  Yet  Dr.  Twiss  speaks 
of  the  Black  Sea  as  being  an  instance  of  a  closed  sea, 
"  whilst  its  shores  were  in  the  exclusive  possession  of  the 
Ottoman  Porte."*  He  thereby  implies  that  the  exclusive 
possession  of  the  Porte  was  the  reason  for  its  close  char- 
acter. 

Accordingly  the  status  of  these  waters  is  assimilated  to 
that  of  lakes  where  the  middle  is  the  boundary  between 
bordering  countries ;  while  to  these  countries  a:id,in  the  case 
of  waters  communicating  with  the  open  sea,  to  all  countries, 
belongs  the  right  of  free  navigation.  « 


J}.— Marginal  Belt. 

A  nation  has  always  been  deemed  to  command  so  much 
of  the  open  sea  off  its  coast-line  as  it  could  protect  from  the 
shore.  In  early  days,  therefore,  this  limit  was  found  in 
the  longest  stone's  throw  or  the  farthest  flight  of  an  ar- 


»  PufEendorf,  De  Jure,  Nat.  et  Gent. 

•  ^  174. 

8  I,  §  189. 

•  Pomcroy,  §  139. 
»  Twiss,  §  174. 

•  Bluatschli,  IV.  §§  301, 306  and  306. 


L.  IV.,  C.  v.,  S.8. 


\ 


— :m- 

row.  »   A   further  nppliciition  of  this  ])riu('ii)iil   of   liiriitn 
tion,    "  Terrjie  (loiiiiiiimn    Jiiiiiur,    iibi     tinitiir   {irinonmi 
vis,"  »  cvoiitiiiilly  iiu'r«'asod  tliis  (lisfiuice  to  cjuinon  rniigc. 
At  the  time  of   tlie  the  recognition  and  spread  of  Inter 
national   Law   in  the  sevcnteeiitli  centnry,  eannon    ranfj,v 
ha[)i)ened  to  he  three  marine  miles.      Thus  for  a  time  the 
two  terms  three  miles  and  oannon-range  weie  eciuivalents. 
But   a   precise  limit    having-  once   been   adopted,    Inter- 
nal ional  Law  was  loatii  to  leave  it;  and  it  has  not  since 
succeeded   in  totally  divorcing  itself  from  it.     Although 
recognized  t(»-day  as  aibitiary,  this  limit  of  three  nuleshas 
the  merit  of  piecision,  and  has  been  sanctioned  in  many  in- 
sianc»'s  by  laws  and  treaties.      Let  Mr.  Seward  be  the  ex- 
punevit  of  this  sentiment : 

"  The  publicists  rather  advanced  towards  than  reached  a 
solution  when  they  laid  down  the  rule  that  the  limit  of  tliM 
force  is  tlie  range  of  a  cannon-ball.  The  range  of  a  cannon- 
ball  is  shorter  or  longer  according  to  the  circumstances  of 
projection,  and  it  mnst  be  always  liable  to  change  with  tlu' 
improvement  of  the  science  of  ordnance.  Such  uncertainty 
upon  a  point  of  jurisdiction  or  sovereignty  would  be  i)ro- 
ductive  of  many  and  endless  controversies  and  conflicts. 
A  more  i)ractical  lindt  of  national  jurisdiction  upon  the 
high  seas  was  indispensably  necessary,  and  this  was  found, 
as  the  undersigned  thinks,  in  fixing  the  limit  at  three  miles 
from  the  coast."  ^ 

But  the  distance  of  defense  is  still  theoretically  and  in 
many  instances  practically  the  lindt  of  the  marginal  belt. 

The  extremes  between  which  the  j^endniii  uof  oi)inionon 
this  point  has  swung  are  twenty  miles,  the  extent  of 
human  sight,  and  one  sea  league,  the  shortest  cannon  shot. 
These  are  the  greatest  and  the  least  distances  which  have 
ever  gained  any  respectable  assent  among  nati(  )n8.  * 


1  Bluntschli  Vol.  IV,  §  302. 

2  Bynkershoek,  De  dorn.  maris,  cap.  3. 

8  Letter  to  Mr.  Tessara,  Dec.  16,  1863,  MSS.    Notes,  Spain. 

4  Let.  Mr.  Jefferson  to  M.  Genet,  Nov.  7,  1793,  MSS.,  Notes  for  Leg. 


I'jingc 


—35— 

Ruj'neval  '  is  authority  f"r  the  proposition  tlmt  the 
horizon  limits  tin;  Jurisdiction  of  a  nation  over  tlic  bonh^r- 
in<,^  ocean.  This  and  the  c(iua)ly  iinpraclical)l(>  tost  of  Valin 
that  tlie  dominion  of  a  country  in  tlic  sea  ceases  only  when 
one  can  no  longer  sound  bottom,''  maybe  dismissed  as  being 
without  foundation — either  in  fact  or  reason. 

The  bulk  of  authority,  however  linnly  establishes  the 
rule  that  jurisdic^tiou  extends  as  far  as  guns  will  carry.  ^ 

As  already  mentioned,  the  distance  has  been  and  always 
may  be  vjuied  by  specilic  law  or  agreement. 

An  illustration  of  a  precise  limit  in  excess  of  three  miles 
thus  lixed  is  the  "Guadalupe-IIiilalgo"  treaty  with  Mex- 
ico of  Feb.  2d,  1848.  The  boundaries  of  the  United  States 
and  Mexico  were  thereby  placed  at  a  distance  of  three 
leagues  from  the  coast."*  But  wuch  an  arrangement  can 
alfect  no  other  but  the  contracting  parties." 

On  the  other  hand,  the  English  act  of  1838,  and  the  Act 
of  Congress  in  1794  "  have  fixed  the  jurisdictional  limit 
for  Great  Britain  and  the  United  States  at  one  sea-league 
or  thiee  marine  miles. 

Yet  even  in  these  cases  where  the  sea-league  is  taken  as 
the  limit,  there  are  some  puri)oses  for  which  the  distance  of 
defense  must  still  be  taken  as  the  limit  of  jurisdiction. 
"The  ground  of  the  rule"  (as  to  maritime  jurisdiction 
of  this  character),  says  Field  shortly,  "  istJie  margin  of  sea 
within  reach  of  the  land  forces  or  from  lohicli  the  land  can 
he  assailedy^     No  nation  can  aiford  to  deprive  itself  of  the 


1  Inst.  Liv.  II,  ch.  9,  §  10. 

8  Coram.  8ur  I'Ordonanco  de  1681,  llv.  V.  Tit.,  I, 

8  Wlieaton,  p.  255  ;  Kent  I,  p.  158  :  Ortolan  I,  p.  152-158  ;  Phil.  I,  §  198; 
Grotius  L.  11,  cup  3,  ^J^  13  and  14  ;  Ileffter,  Europ.  VOlker.,  §  75  ;  Bynker- 
shoek,  De  doni.  maris  cap.  2  ;  Vattel  1  I.,  ch.  33,  §  289  ;  Azuni,  t.I,  cap.  2, 
§  14  ;  KUlber,  §  130  ;  De  Martens,  Droit  des  Gens,  §  40  ;  Pomeroy,  §  150  ; 
Bluntscbli,  Volkerrccht,  vol.  IV.,  §  303. 

4  Wharton  Int.  Law  Dig.  Vol.  I,  S  38,  p.  105. 

6  Let.  Mr.  Buchanan,  Sec.  of  St.,  to  Mr.  Bankhcad,  Aug.  19,  1848. 
«  Act  of  June  5,  1791,  C.  50. 

7  Field  Int.  Code,  2  Ed.,  t^  23. 


-no- 


]K)\vor  io  protect  its  shore  ii<i'ninst  rnariuiders  or  iti  case  it  is  m 
neiiti'al  against  l)elli<,ferent  cannonade,     France  exercised 
this  power  in  1804,  at  the  time  of  the  sea  duel  between  the 
"  Kearsa<i,e"  and  the  "  Alabama.'"     "  Nor  does  this  reason 
apply  exclusively  to  liostile  operations,"    says  Wharton. 
■'  Wt^  can  conceive,  for  instance,  of  u  case  in  vvhidi  armed 
vessels  of  nations  with  whom  we  are  at  peace,  might  select 
a  spot  within  cannon  range  of  our  coast  for  the  practice  of 
their  guns.     A  case  of  this  chai-acter  took  ])lace  not  long 
since  in  which  an  object  on  shore  was  selected  as  a  point  at 
which  to  aim,  for  the  purpose  of  practicing,  projectiles  to 
be  thrown  froni  the  cruiser  of  a  friendly  power.     Suppos- 
ing su(!h  a  vessel  to  be  four  miles  fi-om  the  coast,  could  it 
be  reasonably  maintained  that  we  have  no  police  jurisdic 
tion  over  such  culpable  negligence  ?    Or  could  it  be  reas- 
onably   maintained    that  n^arauders,    who    at    the    same 
time  would  not  be  technically  pirates,  could  throw  pro- 
jectiles upon  our  shores  without  our  having  jurisdiction  to 
bring  them  to  justice  ?    The  answer  to  such  questions  may 
be  drawn   from  the  reason  that  sustained  a  claim  for  a 
three-mile  i)olice  belt  of  sea  in  old  times.     This  reason 
authorizes  the  extension  of  this  belt  for  police  purposes  to 
nine  miles,  if  such  be  the  range  of  cannon  at  the  present 
day.    This,  it  should  be  remembered,  does  not  subject  to 
our  domestic  jurisdiction  all  vessels  i)assing  within  nine 
miles  of  our  shores,  nor  does  it  by  itself  give  us  an  exclu- 
sive right  to  fisheries  within  such  a  limit.     *    *    For  the 
latter  purposes,  the  three-mile  limit  is  the  utmost  that  can 
be  claimed."  ^ 


Another  instance  of  the  over-stepping  of  this  sea-league 
bound  are  the  so-called  "  Hovering  acts."  Great  Britain 
passed  such  an  act  in  1736.  2  The  United  States  in 
1797.3     They  provide  substantially  "for  certain  revenue 


lint.  LawDig.,§82,  p.  114. 

29  Geo.  III.,  cap.  85. 

3  Act  of  March  2d,  1797,  §  27. 


—37- 

piirpo.ses,  a  jurisdiction  of  four  lo:igu('s  from  the  coasts,  bj' 
prohibiting  foi'eign  goods  tobetrahslilppcd  witliin  that  dis- 
tance without  payment  of  duties."  '  The  United  States  Uiw 
on  the  subject  is  found  at  §  '2700  of  the  llevised  Statutes. 

"  The  officers  of  the  revenue  cutters  shidl  ^'  *  go  on 
board  all  vessels  which  arrive  within  the  United  States  or 
Avithin  four  leagues  of  the  const  thereof,  if  bound  for  the 
United  Stares,  and  search  and  examine  the  same,  and  every 
part  thereof,  and  shall  demand,  receive  and  certify  the 
manifests  required  to  be  on  boai'd  certain  vessels,  shall 
affix  and  i)ut  propter  fastenings  on  the  hatches  and  other 
communications  Avith  tlie  hold  of  any  vessel,  and  shall  re- 
main on  board  such  vessels  until  they  arrive  at  the  port  or 
place  of  their  destination." 

Here  then  is  presented  a  conflict  of  municipal  v.ith  in- 
ternational law.  The  analogy  between  it  and  a  similar 
conflict  in  the  Behring  Sea  question  renders  it  peculiarly 
relevant  to  the  present  issue. 

The  real  explanation  of  the  validity  of  such  a  revenue 
regulation  is  contained  in  the  language  of  Mr.  Fish,  while 
Secretary  of  State,  1875  :  "  Although  the  Act  of  Congress 
was  passed  in  the  infancy  of  this  Government,  there  is  no 
Icnoion  insiance  of  any  complaint  on  the  part  of  a  foreign 
Government  of  the  trespass  by  a  commander  of  a  revenue 
cutter  upon  the  rights  of  its  flag  under  the  law  of  nations."  ^ 

Is  not  acquiescence  on  the  part  of  other  nations,  then, 
a  condition  precedent  ?  Is  this  not  virtually  a  c^mfession 
that  such  a  regulation  can  be  nothing  more  than  muni- 
cipal, and  must  never  be  allowed  to  trench  upon  the 
rights  of  other  nations  ?  Such  a  view  sf^ems  borne  out  by  an 
incident  which  occurred  shortly  after.  Mexican  officials 
attacked  United  States  merchant  versels,  for  breach  of  the 
Mexican  revenue  laws,  at  a  distance  of  more  than  three 


1  Wheaton.  §  179. 

2  Let.  to  Sir  Ed.  Thornton,  Jan.  22,  1875 
Relat.,  1875. 


MSS.  Notci,  Great  Brit.  For. 


38- 


miles  from  the  shore.     This  was  styled  by  Secretary  Evarts 
an  international  offence. ' 

Phiilluiore  is  very  positive  in  support  of  this  view  : 
"It  cannot  be  maintained  as  ii  sound  proposition  of 
international  law  that  a  seizure  for  purposes  of  enforcing 
ir.uuifipal  law  can  be  lawfully  made  beyond  the  limits  o^ 
th"  territorial  waters,  though  in  these  liovcrh/f/  cases  judg- 
ments have  been  given  in  favor  of  seizures  made  within  a 
limit  iixed  by  municipal  law,  but  exceeding  that  which  has 
been  agreed  upon  by  inteinational  law.  Such  a  judgment, 
however,  could  not  have  been  sustained  if  the  foreign  States 
whose  subjects'  jiroperty  had  been  seized,  had  thought 
l^roper  to  interfere  "  ^ 

Dana  says  ;  'It  will  not  be  found  that,  in  later  times, 
the  righl  to  make  seizures  beyond  such  waters  has  been 
insisted  upon  against  the  remonstrance  of  foreign  States." 
But  he  goes  ^till  farther  and  denies:  "that  a  clear  and 
unequivocal  judicial  precedent  now  stands  susudning  such 
seizures  when  the  question  of  jurisdiction  has  ,been  pre- 
sented." 3 

The  explanation  of  such  acquiescence  on  the  part  of 
other  nations  is  that  "the  sovereign  whose  flag  has  been 
violated  waives  his  privilege,  considering  the  offending 
ship  to  have  acted  with  mala  Jules  towards  the  other  State 
with  which  he  is  in  amity,  and  to  have  consequently  for- 
feited any  just  claim  to  his  protei-tion."  * 

Accordingly  a  State  executes  these  extra  territorial 
enactments  at  its  "  peril,"  hoping  for  ratification  from 
"  motives  of  comity  by  other  nations.""  For  "it  cannot 
now  be  successfully  maintained  either  fcliat  municipal  visits 
and  search  may  be  made  beyond  the  territorial  waters,  for 
special  jjurposes,  or  that  there  are  different  bounds  of  that 


1  Let.  to  Mr.  Foster,  Apl.  19,  1879  ;  MSS.  lu^t.  Mex 
a  I,  No.  198. 
8  Wlieatoii,  g  179  ;  note, 
•1  Kept,   of   Dr.    Twiss  to    tin 
Wharton,  §  33,  p.  111. 

(»  Wheatou,  §  179,  note. 


Sardinian  Gov't,  in   the   Cagliari   case, 


—39— 

tprvitorv  for  different  objects.      -'     "    In  later  times  it  is 
S^^  l2v  that  jndiciA  as  well  as  poUtic-l  tribunal  wiU 
?nsist  on  one  line  of  marine  territorial   i--  -  "^    ^  ^r 
exercise  of  force  on  foreign  vessels,  m  tmie  of  peace, 
nil  purposes  alike."  * 


There  is,  however,  an  open  place  in  all  ^^^^^^^ 
fnr  taken  In  this  snbaivision.    Shall  we  say  u  ith  ^e'««'' 
R^vHrd"  .hit  tl'.e  soaward  boundary  of  tl.is  /.one  ol  tein- 
SatJsfoll^vs  the  coast  ol  the  ".-;■■-'{;  .-(-;1;^« 
?li.-,  -■  "X.  ore  islands  so  as  to  place  aronnd  snch  •s'.  nd» 
sa  ,  .  i.^' .    This  necessarily  excludes  the  position  tha  th. 
sLvard  bonndary  is  to  be  drawn  from  hea.  l»d  to  head 
land,  and  makes  it  follow  closely,  at  ■^^^  „^.  „f 
miles,  the  bonndary  of  the  shore  of  «'«;»"'  """j^,  „  , 
adjac'ent  islands  belonging  to  the  ^it^nental  so  e  ei  n 
Or  shall  we  take  to  be  true  what  Mai  tens  sajson 
snWee"  A  fictitious  line  is  always  dva^n.  t-m  one  pio- 
molry  to  another,  and  this  }^J^^^j::^J^. 
parture  for  the  cannon  range  :  tins  P;^^"*^.''',,   .  S^  ,  _  .i^^ 

"1t::;f^ngK  ...  attitnae  on  this  <,n^K>n^^ai^^^ 

of  the  drift  of  -^o^l^l^Vin^ou^J^jZ^^^ 

fisheries  tn^aty"*  with  France,  by  the  terms  oi  


1  Whcaton.  p.  260  note^  Mav  28  ;  MSS.  Dom.  Let. 

3  Marbr^'  Precis,  Vol.   i.   P-    14,1  .    »o  "" 

.,«utr..  I  ' '\  '?G. 

4  Poiiio'Af  ^  i-  1?1. 
6  Wiiealiu,  i-'  -00. 


10- 


"  equally  agreed  that  the  distance  of  three  miles  fixed  as 
the  general  limit  for  the  exclusive  right  of  fishing  upon  the 
coasts  of  the  two  countries  shall,  with  resi)ecc  to  bays,  the 
mouths  of  which  do  not  exceed  ten  miles  in  width,  be 
measured  from  a  straight  line  drawn  from  headland  to  head- 
land. "^ 

The  treaty  of  1818,  between  Great  Britain  and  the  United 
States,  after  enumerating  certain  limits  of  free  fishing,  pro- 
vided that  ■  't  he  United  States  *  renounce  forever  any 
liberty  heretofore  enjoyed  oi'  claimed  by  the  inhabitants 
thereof,  to  take,  dry,  or  cure  1  i  "^  or  within  three  marine 
leagues  of  the  coasts,  bays,  cree.-  ,  harbors  of  his  Britan- 
nic Ma iestv's  dominions  in  Ame)"i(ii  not  included  Avithin  the 
above-mentioned  limits."  ^ 

In  1849,  difficulties  arising  as  to  the  construction  of  this 
article,  owing  to  its  alleged  non-observance  by  United  States 
citizens,  the  British  Law  Officers  were  consulted.  ^  They 
gave  as  the  true  construction  that  "  llie  prescribed  distance 
of  three  miles  is  to  be  measured  from  the  headlands  or 
extreme  points  of  land,  next  the  sea  or  coast,  or  of  the 
entrance  of  bays  or  indents  of  the  coast,  and  that  conse- 
quently i\o  right  exists  on  the  part  of  American  citizens 
to  enter  the  bays  of  Nova  Scotia,  there  to  take  fish, 
although  the  fishing,  being  within  the  bay,  may  be 
at  a  greater  distance  than  three  miles  from  the  shore 
ol'  the  bay,  as  we  are  of  opinion  that  the  term  '  head- 
land '  is  used  in  the  treaty  to  express  the  part  of  the  land 
we  have  before  mentioned,  including  the  interior  of  the 
bays  and  the  indents  of  the  coasts."  * 

Nevertheless  the  jurisdictional  line  thus  drawn  must 
be  regarded  as  resting  more  on  the  precise  words  of  the 
treaty,  "  within  three  marine  leagues  of  any  of  the  coasts, 
bays,"  &G..  than  on  any  doctrine  of  headlands.     Besides 


1  Treaty  of  2d  of  Aug. ;  Martens'  U.  It.,  xvl,  p.  954. 
a  Annual  Reg..  Vol.  xciv  (1852),  pp.  295  6. 

3  Pliil.  I,  g  196. 

4  Ann.  Ueg.,  Vol.  xciv  (1852),  pp.  290-7. 


—41- 


I  the 

I  the 

be 


this  decision  was  given  on  the  s apposition  that  the 
word  "headland"  occurred  in  the  treaty.  Whereas, 
as  Sir  Robert  Phillimore  has  pointed  out,  it  does  not.  He 
accounts  for  this  curious  error  by  saying  that  "the  Law 
Officers  probably  gave  their  opinion  on  a  statement  of  the 
colonists  in  which  the  word  did  occur. "i  While  the  es- 
sence of  the  headland  doctrine  is  that  it  applies  exactly 
there  where  no  mention  is  made  of  headlands,  and  no  pre- 
cise method  of  drawing  the  line  of  marginal  jurisdiction 
is  provided.  For  these  reasons,  this  inter[)retation  put 
upon  the  fisheries  treaty  of  1818  cannot  be  cited  as  an  in- 
stance of  England's  grasping  claim  in  regard  to  headlands. 

The  rights  under  this  treaty  were  extended  in  1854 ;  but, 
in  1865,  they  were  abrogated  by  the  United  States  in  the 
exercise  of  a  power  reserved  to  it  in  the  treaty. ' 

On  May  14,  1870,  the  Provincial  Minister  of  Marine  and 
Fisheries,  Mr.  Peter  Mitchell,  re-asserted,  now  without 
treaty  sanction,  this  doctrine  of  headlands.  Lord  Gran- 
ville, British  F(  »reign  Secretary,  instantly  telegraphed : 
"Her  Majesty's  Government  hopes  that  the  United  States 
fishermen  will  not  be,  for  the  present,  prevented  from  fish- 
ing, except  within  three  miles  of  land,  or  in  bays  which  are 
less  than  six  miles  broad  at  the  mouth."  ^ 

The  tendency  of  England  may,  therefore,  be  said  to  be 
away  from  the  doctrine  of  headlands. 

In  striking  contrast  to  this  attitude  on  tlie  part  of  a 
country  which  in  the  case  of  the  Kings  Chambers  on  her 
own  coasts  has  always  been  most  tenacious  of  this  doctrine, 
is  the  language  of  our  own  Chancellor  Kent : 

"  Considering  the  great  extent  of  the  line  of  the  Ameri- 
can coasts,  we  have  a  right  to  claim,  for  fiscal  and  defen- 
sive regulations,  a  liberal  extension  of  maritime  jurisdic- 
tioi?  ;  and  it  would  not  be  unreasonal>ie,  as  I  apprehend,  to 
assume  for  domestic  purposes  connected  with  our  safety 


1  I,  §  196.    ote. 

8  Phil.  I.,  §  196. 

8  Wharton,  §  29,  p.  76. 


113 


—42— 


and  welfare  the  control  of  waters  on  our  coasts,  though 
included  within  lines  stretching  from  quite  distant  head- 
hinds — as,  for  instance,  from  Cape  Ann  to  Cape  Cod,  sind 
from  Nantucket  to  ]V[ontauk  Point,  and  from  tliat  ])oint  to 
the  capes  of  Delaware,  and  irom  the  ISouth  cape  of  Florida 
to  the  Mississippi.     *    *     * 

"  There  can  be  but  little  doubt  that  as  the  United  States 
advance  in  commerce  and  naval  strength,  our  Government 
will  be  disj)osed  more  and  more  to  feel  and  acknowledge  the 
justice  and  i)(>licy  of  the  British  claim  to  supremacy  over 
the  narrow  seas  adjacent  to  the  British  Tsles,  because  we 
shall  stand  in  need  of  similar  accommodation  and  means  of 
security."  1 

To  be  sure,  the  context  makes  it  clear  that  the 
learned  Chancellor  had  particidiirly  in  mind  the  right  to 
investigate  tlie  nationality  of  an  armed  vessel  hovering 
*' on  our  coasts,"  rather  thiin  a  proprietary  right  such  as 
tha':  of  exclusive  lishing.  Yet  it  is  strange  that  Dr.  Philli- 
more  should  have  quoted  this  passage  as  indicative  of 
American  opinion  on  this  point. ^  For  it  has  been  repeat- 
edly disclaimed  by  the  highest  American  authorities. 
President  Woolsey  declares  "  that  such  broad  claims  have 
not,  it  is  believed,  been  much  urged,  and  they  are  out  of 
character  for  a  nation  that  has  ever  asserted  the  freedom 
of  doubtful  waters  as  well  as  contrary  to  the  spirit  of  more 
recent  times." »  While  Poraeroy  as  unhesitatingly  as- 
serts :  "From  the  main  propositions  and  doctrines  in 
this  extract  of  Chancellor  Kent,  I,  as  an  iVmerican  lawyer 
and  citizen,  must  emphatically  dissent.  *  *  I  should 
add  that  these  pretensions  on  the  part  of  our  government 
seem  to  have  been  abandoned."* 


1  Commentaries,  Vol.  I,  p.  30. 
3  I,  §  201. 

3  Int.  Law.  §  56. 

4  Pomeroy,  §  157. 


-4:J— 


|iiftli 

^'1(1- 

hmd 

It  to 

li'idii 

ites 
ieiit 
the 

■cner 
we 

IS  of 


The  history  of  theheadlnnd  dootrino,  tlierefore,  warrants 
tlie  conclusion  of  Dr.  Wliarton  : 

*' It  cannot  he  asserted  as  ii  general  rule  that  nations 
have  an  exclusive  right  of  fishery  over  all  adjar-ent  waters 
to  a  distance  of  3  nuirine  miles  beyond  an  iniaginary  line 
diawn  from  headland  to  headland.  This  (h)ctrine  of  head- 
lands is  new,  and  has  received  a  pi-ojit-r  limit  in  the  conven- 
tion between  France  and  Great  Britain  on  the  2d  of  Aug., 
18;]9."i 


With  the  preceding  principles  fresh  in  mind  T  shall  not 
fear  the  charge  of  partiality  if  I  ado])t  the  official  language 
of  the  Canadian  Privy  Council  and  say  : 

"  It  does  not  appear  necessary  to  insist  at  any  great 
length  that  the  conditions  attaching  to  Maria  daitsa,  can 
not  by  any  possibility  be  predicated  of  ]5ehring  Sea,  and 
tliat  the  seizure  of  Canadian  vessels  at  a  distance  of  over 
100  miles  from  the  mainland,  and  TO  nnles  from  the  nearest 
island,  constitutes  a  high-handed  extension  of  maritime 
jurisdiction  unprecedented  in  the  law  of  nations."^ 

The  Behring  Sea  can  l)e  brought  under  the  head 
of  neitlier  strait  nor  marginal  belt.  In  that  it  is  not 
entirely  surrounded  by  land,  it  falls  short  of  the  requisites 
of  an  enclosed  sea.  For  not  only  is  the  Behring  Strait  36 
miles  wide,  and  the  distance  between  many  of  the  islands 
forming  the  southern  boundary  of  this  sea  far  in  excess  of 
that,  but  the  distance  between  the  last  island  of  the  Aleu- 
tian chain,  and  the  nearest  Russian  island  of  the  Com- 
mander group  is  183  miles. 

Again,  regarded  as  a  bay  or  gulf,  the  Behring  Sea  fails 
to  enter  the  category  of  closed  seas.  For  waiving  all  physi- 
co-geograpliical  objections  to  such  a  classification,  there  still 


1  Dig  ,  §  29,  p.  76. 

3  No.  117,  Report  approved  by  Gov.  Gen.,  29  Nov.  1886. 


-44— 


remains  to  its  character  of  closed  sea  the  insuperable  objec- 
tion of  impossibility  of  possession. 

The  name  bay  or  gulf  does  not  necessarily  carry  with 
it  the  idea  of  possessibility,  and  international  law,  when 
importuned  to  accord  such  a  character  to  the  Behring 
Sea,  cries  out  with  Vattel : 

"Mais  je  parle  des  bales  et  detroits  de  peu  d'  ctendue, 
et  non  de  ces  grand  espaces  de  nier,  auxquels  on  donne 
quelquefois  ces  noms,  tela  que  la  bale  de  Hudson,  le  detroit 
de  Magellan,  sur  lesquels  1' empire  ne  saurait  s'etendre,  et 
moins  encore  la  propriete."^ 

We  have  learned  that  defensibility  of  its  entrance  from 
the  sea  is  a  prerequisite  to  the  possession  of  a  gulf.  This 
requisite,  the  Behring  Sea,  for  the  obvious  reasons  just 
mentioned,  does  not  fulfill. 


1  Droit,  &c.,  T.  I,  L.  I,  C.  XXIII,  s  391 


.4.1— 


lec- 

ith 

lien 


rom 
rhis 

iU3t 


CHAPTER  V. 

MaUK  LlBEIlUM    IN    AmEUICAN    IIlSToIlY. 

But  there  are  those  in  whose  hands  the  scales  of 
justice  do  not  dip  with  the  weight  of  international  pre- 
cedent. A  precedent  is  never  a  parallel  ;  at  best  it  argues 
by  analogy.  The  precedent  most  directly  in  point  is  but 
an  approximate  parallel.  There  being,  therefore,  neither 
in  law  nor  history  a  precise  instance  of  all  the  conditions 
involved  in  the  Behring  Sea  dispute,  these  exacting, 
rather  tlian  exact,  reasoners,  u>ing  this  as  a  pf)int  of 
departuie,  practically  create  in  the  interest  of  the  United 
States  a  margin  for  despotism.  Our  progressive  country, 
say  they,  ought  not  to  be  (ihained  to  old  world  ideas,  but, 
as  often  before,  should  set  tlie  fashion  for  the  world.  To 
rouse  the  diplomatic  conscience  of  such  as  these  I  shall 
conjure  up  before  their  gaze  the  ghost  of  our  national  past. 

When,  in  1855,  the  United  States  was  invited  to  par- 
ticipate in  the  European  Conference  to  adjust  the  gross  sums 
which  should  be  paid  to  Denmark  for  the  right  of  pjussage 
through  the  Sound  and  the  two  Belts,  President  Pierce 
declined  to  have  anything  to  do  with  such  payment  "be- 
cause," said  he,  "it  is  in  effect  the  recognition  of  the 
right  of  Denmark  to  treat  one  of  the  great  maritime  high- 
ways of  nations  as  a  close  sea,  and  prevent  the  navigation 
of  it  as  a  jjrivilege,  for  which  tribute  may  be  imposed  upon 
those  who  have  occasion  to  use  it."  * 

In  1862,  when  Spain  insolently  pushed  her  claim  to  an 
extended  jurisdiction  around  the  Island  of  Cuba,  Secretary 
Seward's  forcible  response  was : 

"  It  cannot  be  admitted,  nor,  indeed,  is  Mr.  Tessara  un- 
derstood to  claim,  that  the  mere  assertion  of  a  sovereign, 
by  an  act  of  legislation,  however  solemn,  can  have  the 
effect  to  establish  and  fix  its  external  maritime  jurisdic- 


t  Pierce's  8d  Annual  Message,  1855. 


40- 


tion.  *  *  *  IIo  cannot,  by  a  mere  decree,  extend  the 
limit  and  fix  it  at  six  miles,  because,  if  lie  could,  he  couhl 
in  the  same  manner,  and  ui>on  motives  of  interest,  ambi- 
tion and  even  upon  caprice,  llx  it  at  ten,  or  twenty,  or 
iifty  miles,  without  the  consent  or  acquiescence  of  othei' 
powers  which  have  a  common  ri^ht  with  himself  in  the 
freedom  of  all  the  oceans.  Such  a  pretension  could  never 
could  be  successfullv  or  ri!j;htfully  maintained."  ' 

This  lani^iiage  is  peculiarly  applicable  to  our  Behrin^' 
Sea  claims,  b.'cause,  unless  we  concede  that  they  were 
deriveil  from  Russia,  they  rest  solely  on  an  Act  of  Municipal 
Law. 

In  1871,  the  Secretary  of  State,  ^^r.  Fish,  wrote  to  our 
Minister  at  Constantinople : 

"This  Government  is  not  disposed  to  prematurely  raise 
any  question  to  disturb  the  existing  control  whicdi  Turkey 
claims  over  the  straits  leading  into  the  Euxine.  *  *  But 
while  tills  Government  does  not  deny  the  existence  of  the 
usftge  *  *  the  President  deems  it  important  to  avoid 
recognizing  it  as  a  right  under  the  laws  of  nations."  ^ 

This  same  view  with  regard  to  sovereignty  over  a  strait 
fitids  more  determined  ex[)ression  in  a  letter  from  Mr. 
Evarts,  Secretary  of  State  in  1879  : 

"The  Government  ot  the  United  States  will  not  tolerate 
exclusive  claims  by  any  nation  whatsoever  to  the  Straits  of 
Magellan,  and  will  hold  responsible  any  Government  that 
undertakes,  no  matter  on  what  pretext,  to  lay  any  impost 
or  check  on  the  United  States  commerce  through  those 
Straits."  3 

In  1875,  a  question  arising  as  to  Russia's  authority  to 
grant  licenses  for  the  use  of  her  contiguous  seas,  Mr.  Fish 
yet  more  pointedly  said  : 


1  Let.  to  Mr.  Te8.sara,  Aug.  10,  1863.    MSS.  notes,  Spain. 

2  Let.  Maj'  5.     MSS.  Inst.  Turkey;  For.  Rel.,  1871. 

3  Let.  Mr.  Evarts  to  Mr.  Osborn.    Jan.  18,  1879.     Wharton's,  Dig,  §  80, 
p.  80. 


—47— 


the 
[iild 

|,  ur 

Ithcj- 

rile 

jver 


((  'V 


our 


rii(-i'o  was  ivason  to  liopn  that  tlie  practic*^  wliicli 
foi'incrly  prevailed  with  powerful  nations,  of  renarding 
.s'cds  and  hi\y:i,  uf{f/(/N//  (>/'/(//•//('  r.vfr?i/,  wt'iw  llieir  eoast, 
(/s  closed  to  any  forcuju  comunrce  or  Jhliery  not  specially 
licensed  by  tliein,  was,  without  exception,  a  priloisloii,  of 
Z*//^  7;«.s7,  and  that  no  nation  would  claim  exenipiiou  from 
the  general  rule  of  public  law  which  limits  its  maritime 
jurisdiction  to  a  marine  league  from  its  coast.  We  shoidd 
particularly  regret  if  Russia  should  insist  on  any  such 
[iretension  "' 

And  finally,  our  latest  oirici.il  word  on  this  matb'r.  In 
ISSO  warning  was  given  by  the  Canadian  aathoi'ities  to 
American  lishernien  not  to  ctiriy  on  their  occupation 
within  th^  waters  of  the  Bay  of  C'haleurs,  a  bay  which 
measures  about  eighteen  miles  at  its  mouth.  In  a  dispatch 
of  June  14th,  Secretary  Bayard  stigmatized  such  action  as 
a.  "wliolly  unwarianted  i)i-etension  of  extra-ten itorial 
authority'' and  an  "  interference  with  tlie  unquestionable 
rights  of  the  American  fishermen  to  pursue  their  business 
without  molestation  ut  any  point  not  within  H  marine 
miles  of  the  shore." » 

We  may  well  give  heed  to  Lord  Lansdowne's  comment  : 
"It  is,  I  think,  worth  while  to  contrast  the  claims  now 
urged  by  the  Government  of  the  United  States  to  exclusive 
control  over  a  part  of  tlie  Pacific  Ocean,  the  distance 
between  the  shores  of  which  is,  as  was  pointed  ont  by  Mr. 
Adams,  in  1822,  not  less  than  4,(){)<)  miles,"*  with 
these  indignant  remonstrances  of  Secretary  Bayard  :  and 
echo  the  question  of  a  newspaper  of  that  time  :  "  Wiiat 
would  be  said  if  the  British  undertook  to  prevent  an 
American  whaler  from  entering  Hudson  Bay,  or  traversing 
the  western  half  of  that  arm  of  the  Atlantic  Ocean  which 
leads  to  it  ?  Maritime  law  and  international  are  the  same 
whether  on  the  Atlantic  or  the  Pacific,  and  there  is  cer- 


1  Mr.  Fish,  Sec.  of  St.  to  Mr.  Bokcr.  Dec.  1,  1875.     MSS.  lust.,  Russia. 

2  No.  117.     Let.  of  Lord  Lansdowne  to  Mr.  Stanliopc,  Nov.  29,  1886. 

3  Jd. 


-48- 


tainly  something  grotesque  in  the  sight  of  hundreds  of 
American  tislierinen  liovering  on  tlie  Canadian  Atlantic 
«!oast  ju8t  beyond  the  :}-inile  limit,  and  ohiiming  to  enter 
all  bays  more  than  3  miles  wide  at  the  mouth  and  fish, 
whilt  on  tlie  Pacitio  Canadian  vessels  are  captured  300 
miles  from  the  main-land,  and  the  claim  is  made  that  a  bay 
more  than  l,Oi;0  miles  wide  at  the  mouth  shall  be  a  closed 
sea  to  them."* 

The  above  expressions  of  our  policy,  together  with  our 
attitude  toward  Russia,  before  the  Alaskan  cession,  force  me 
to  admit  the  justice  of  Canada's  criticism  :  The  United 
States  "appear  to  have  done  this  in  spite  of  the  admitted 
principles  of  international  h.  w,  and  in  direct  opposition  to 
their  own  contention  of  what  constitutes  common  waters 
upon  the  Atlantic  coast." " 


1  Brooklyn  Eagle. 

2  No.   109.    Report  of  the  Minister  of  Marine  and  Fisheries  to  Privy 
Council,  approved  by  Administrator,  Sept.  84,  1888. 


OFF 


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Jul 
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1 

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V 

I 

t 


—49- 


of 
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itnr 
[sli, 
poo 

fsed 


CHAPTER  VI. 

OFFICIAL   EXPLANATION   OF  TIIK  HKIIUINO    SEA     POLICY    OF 

TIIK   UNITED    STATES. 

The  United  Stcates  lias  not,  thus  far,  ofFu-ially  ex- 
plained its  acts  of  snpieiTiacy  in  the  liehiin;,'  Sea.  It 
has  ex^rcisBtl  in  th')se  waters  th'^  sovereif^n  povvrT  of 
seizure,  yet  it  has  not  expressly  asserted  sovereignty.  It 
has  by  an  act  of  Municipal  L;nv  extended  over  that  sea  its 
jurisdiction ;  yet  it  h:is  not  actively  and  regardless  of 
foreign  protest,  but  only  perniissively  and  until  specific 
remonstrance,  insisted  upon  the  execution  of  that  act.  In- 
deed, the  only  offKrial  basis  for  these  actions  which  can  be 
found  must  be  gathered  from  two  conversations  with  Sec- 
re  ^y  Bayard,  which  the  British  Minister  at  Washington 
]         ted  to  the  Earl  of  Iddesleigh  : 

•  in  fact,  he  [Mr.  B;iyard]  said  the  territory  was  not 
properly  organized.  He  had  not,  moreover,  reached  the 
exact  nature  of  the  rights  ceded  by  Russia  to  the  United 
States,  but  it  seemed  clear  that  Russia,  previous  to  the 
cession,  contended  that  Beliring  Sea  was  a  mer  ferniee; 
whereupon  I  remarked,  '  and  against  which  contention  the 
United  States  protested.'  'Yes,'  he  replied,  'at  that 
time."'» 

Continuing  later,  Mr.  Bayard  said  that  the  "nature  of 
the  jurisdiction  over  the  Behring  Sea  ceded  by  Russia  *  * 
was  a  complicated  question,  but  one  which  would  be  met 
in  all  fairness  by  the  United  States  Government.  He  con- 
tinued to  explain  to  me  that  the  value  of  Alaska  consisted 
in  the  seal  fisheries  ;  that  the  seals  frequented  chiefly  the 
islands  of  St.  Paul  and  St.  George,  where  the  great  catch 
was  made,  and  that  these  islands,  although  situated  (as  he 
stated)  more  than  200  miles  from  the  main-land,  were,  he 
conceived,  comprised  in  the  jurisdiction  ceded  by  Russia  ; 


1  No.  124,  Nov.  12,  1S86. 


—50— 

but  lie  (lid  not  wish  lo  pronounce  upon  this  point  at  pres- 
ent. He  would  observe,  however,  that  the  value  of  the 
seal  "rookeries"  on  these  islands  would  be  destroyed  if  it 
was  opened  to  all  vessels  to  kill  seals  outside  the  3-mile 
limir,  for  no  seals  would  ever  reach  them."^ 

Protection  of  the  seal  fisheries  from  destruction  is  here 
the  prevailing  thought.  Whether  or  not  a  justifying  excuse, 
the  extreme  stress  which  in  his  instructions  to  our  foreign 
envoys  Secretary  Bayard  puts  upon  it,  shows  that  thought 
to  have  been  supreme  in  his  mind.  He  evidently  relied 
more  on  the  reasonableness  of  such  protection  than  the 
legality  of  the  claim  of  sovereignty  ;  and  the  sincerity  of 
this  purpose  is  attested  by  the  fact  that  during  1887  ten 
American  vessels  were  seized  and  United  Stales  citizens 
arrested  for  killing  fur  seals  in  the  Behring  Sea.  ^ 

Certainly  if  anything  will  justify  our  seizures  in  the 
Behring  Sea,  the  peculiar  facts  of  the  seal  life  in  those 
waters  will.  They  present  a  strong  case  for  single  nation 
interference. 


Connecting  Behring  Sea  with  the  Pacific  Ocean  are  the 
passes  which  separate  the  islands  of  the  Aleutian  chain. 
Through  these,  in  the  late  spring,  draw  the  returiJng  hordes 
of  the  fur  seal  after  their  wintering  in  the  warmer  waters 
of  the  Pacific.  *'  The  convergence  and  divergence  of  these 
watery  paths  of  the  fur  seal  to  and  from  the  Sea  Islands 
resembles  the  spread  of  the  spokes  of  a  half  wheel — 
the  Aleutian  chain  forms  the  felloe,  while  the  hub  into 
which  thbie  spokes  enter  is  the  small  Pribyloff  group/' ^ 
So  .that  upon  the   Seal   Islands   of  tud  Pribyloff  group, 


1  No.  124.    Let.  Dec.  10,  1886. 

3  No.  76.  Let.  Mr.  Bayard  to  J'  r.  Phelps,  Feb.  7,  1888. 
8  No.  76.  Report  of  Hon.  Henry  Vr.  Elliotiof  the  Smithsonian  Institute  to 
Mr.  Bayard,  Dec.  8,  1887. 


} 


—51— 


[s- 
lie 

it 
le 

Ire 
le, 
tn 
Iht 
ed 
[he 
of 
[en 


St.  George  and  St.  Paul,  is  cast  rearlv  the  whole  mass  of 
these  returning  fur  seal  millions.  Px./e  then  are  their  nat- 
ural rookeries. 

In  these  islands  the  fur  seal  is  obliged  annually  to  haul 
out  for  the  purpose  of  breeding  and  shedding  its  pelage. 
The  male  seals  or  bulls  require  little  food  during  the  five 
or  six  summer  months,  sustaining  existence  on  the  blubber 
secreted  beneath  their  skin.  They,  therefore,  remain  ashore 
watching  the  rookeries.  So  that  the  greater  part  of  the 
seals  found  during  the  summer  at  any  distance  from  the 
islands  are  females  in  search  of  food  for  themselves  and 
their  young. 

Grieat  discrimination  is  exerc'sed  and  enfoiced  by  the 
Alaska  Company  in  the  killing  of  these  seals  ;  only  the 
young  bulls  are  permitted  to  be  slain  ;  they  are  driven 
inland  from  the  sandy  parts  of  the  islands  whither  the  old 
bulls  have  driven  tiiem,  and  clubbed  in  order  that  their 
skins  may  not  be  perforated. 

On  the  contrary,  if  these  seals  are  hunted  in  the  sea, 
not  only  is  discrimination  impossible  but  nearly  one  out  of 
every  three  so  slaughtered  sinks  and  is  lost.  Besides  as  I 
have  said  only  females  frequent  these  seas  at  this  season.  ^ 

I  need  not  point  out  the  utter  ruin  which  thus  threatens 
this  valuable  industry.  Anywhere  from  3  to  100  miles 
south  of  the  Seal  Islands,  the  pelagic  sealer  "has  a  safe  and 
fine  loc;  Hon  from  which  to  shoot,  to  sj)ear,  and  to  net  these 
f  ur-bearmg  amphibians,  and  where  he  can  work  the  most 
comjilete  ruin  in  {,.  very  short  time."  Continues  Mr. 
Elliott,  "with  gill  nets,  under  ^an  by  a  fleet  of  sealers  in 
J3ehring  Sea,  acsross  these  converging  paths  of  the  fur  seal, 
anywhere  from  3  to  100  miles  southerly  from  the  Seal 
Islands  I  am  extremely  moderate  in  saying  thatsuchah'et 
could  and  would  utterly  ruin  the  fur  seal  rookeries  of  the 
Pribyloff  Islands  in  less  time  than  three  or  four  short 
seasons.      *    *    *    Open  these  waters  of  Behring  Sea  to 


1  Mr.  Elliott's  Report. 


-52— 


nncliecked  pelngic  sealing,  then  a  fleet  of  liiintlreds  of  ves- 
sels—steamers, ships,  schooners  and  whatnot — wonld  im- 
mediately venture  into  them  bent  upon  the  most  vigorous 
and  indiscriminate  slaughter  of  these  animals.  A  lew 
seasons  then  of  the  greediest  rai)ine,  then  nothing  left  of 
those  wonderful  and  valuable  interests  of  the  public  which 
are  now  so  handsomely  embodied  on  the  Seal  Islands." 

The  great  nocd  of  immediate  regulation  is  apparent. 
The  history  of  seal  fisheries  in  other  parts  of  the  world 
ought  to  serve  as  a  warning.  Whereas,  formerly  hundreds 
of  thousands  of  seals  were  annually  taken  off  the  coasts 
of  Chili,  the  South  Pacific  Islands,  Southern  Africa 
and  the  Falkland  Islands,  through  indiscriminate 
slaughter  the  whole  annual  catch  in  those  localities  has 
now  been  reduced  to  a  few  thousand.  In  sf)me  places 
it  has  led  to  the  entire  destruction  ()f  the  rookeries. 
So  that  out  of  102,000,  which  is  the  aveiage  yield  of 
the  fur  seal  fisheries  of  the  world  since  1880,  136,000  or 
nearly  three-quarters  are  captured  on  the  islands  of  the 
Pribyloff  and  Commander  groups ;  and  25,000  more  are 
taken  out  of  the  adjacent  waters  by  the  British  and  Ameri- 
can sealing  fleets.  Mr.  A.  Howard  Clark,  who  furnished 
the  statistics  for  the  article  on  Seal  Fisheries  in  the  Ency- 
clopedia Britannica,  says  : 

"There  can  be  no  question  concerning  the  advisability 
of  regulating  the  number  of  animals  to  be  killed  and  the 
selection  of  such  animals  as  will  not  interfere  with  the 
breeding  of  the  .species."  ^ 

While  such  a  partisan  authority  as  the  Inspector  of 
Fisheries  for  British  Columbia,  reports  that  a  repetition  of 
the  enormous  catch  in  I'-iSG  -7  of  40,000  to  50,000  fur  seals 
by  schooners  from  San  Francisco  and  Victoria,  "  with  the 
increase  which  will  take  jilace  when  the  vessels  fitting  up 
every  year  are  ready,  will  soon  deplete  our  fur  seal  fishery, 


1  No.  70    Review  of  the  fur  seal  fisheries  of  the  world  in  1887. 


-53- 


Is- 
h- 
11  s 
fvv 
>f 

3ll 


[ind  it  is  a  great  pity  that  such  a  valuable  industi-j'  could 
not  in  some  way  be  protected."  ^ 


Seal  fishing,  and  by  reason  of  its  almost  sole  survivor- 
ship, particularly  the  Behring  8ea  s'ial  tisliery,  is  a  world 
interest ;  not  only  are  all  nations  indirectly  profited  by  its 
preservation,  but  England  directly.  Nearly  all  undressed 
fur  seal  skins  are  shipped  to  London  ;  and  it  is  estimated 
that  their  dressing  and  dying  gives  employment  in  that 
city  to  10,0(10  peoi)le.  Are  we  then  not  acting  in  the  in- 
terest of  these  other  nations  '( 

But  regulation  by  I  he  United  States  means  also  monopoly 

by  the  United  Srates,  and  the  dii'tate  o:'  International  Law 

is  plain  :     "  The  rich  treasures  of  the  sea  are  open  to  all  hu- 
manity." ^ 

Now  regarded  merely  as  ;in  international  interlocutory 
injunction,  our  action  seems  reasonable  and  just.  To  allow 
the  indiscriminate  slaughter  of  seals  pending  international 
negotiations  for  their  protection  would  lead  to  the  destruc- 
tion of  the  subject  matter  of  the  disi)ute,  and  would  be  folly. 
Either  the  seal  fishery  must  <:o  unregulated  or  be  tempo- 
rarily regulated  by  a  power  ready  to  iindertalce  the  duty. 
On  this  theory  then  the  United  States  might  properly  ph^' 
the  role  of  international  agent. 

But  not  in  the  capacity  of  agent  have  we  offered  oui 
services.  We  have  assumed  the  policing  of  these  waters, 
and  the  regulation  of  these  fisheries  in  our  own  right. 
For  y  ^ars  past,  the  matter  might  have  been  settled  by  In- 
ternational action ;  yet  nothing  was  done.  Suddenly 
vessels  are  seized  and  confiscated  in  the  face  of  solemn 
protests  by  the  offending  nation.  Can  we  be  called 
the  agent  of  that  nation  ?  Can  we  be  said  to  be  exer- 
cising this  power  on  sudden  emergency,  and  only  pending- 
some  concerted  action  by  nations,  when  for  our  authoriza- 

1  Report  of  Thomas  Mowat ;  Sessional  papers,  Vol.  15,  No.  16,  p.  268, 
Ottawa,  1887. 

8Bluntschll,  Vol.  IV.,  fc^  807. 


-^^i— 


tion  we  look  to  a  municipal  act  of  twenty  years  standing  ? 
Evidently  our  lav»s  and  our  attitiide  are  based  not  on  an  in- 
ternational power  of  attorney,  but  on  national  title-deeds. 
Secretary  Bayard's  plea  that  the  exigencies  of  seal  fish- 
ing demand  from  ns  the  course  we  have  pursued  irust, 
therefore,  stand  on  other  ground  than  that  of  international 
authority.  There  are  two  arguments  wrapped  up  in  it : 
either  he  must  prove  that  the  exercise  of  police  power  is  not 
an  act  of  sovereignty  ;  or  else  he  must  hold  that  the  sea, 
so  far  as  its  use  is  not  inexhaustible,  as  in  the  case  of  a 
fisher j%  is  capable  of  dominion. 

First  then,  as  to  the  nature  of  the  police  power.  The 
argument  here  is  that,  although  we  may  have  no  property 
in  the  broad  Kehring  sea  itself,  no  ownership  in  the  seals 
when  swimming  through  those  waters,  yet  we  have  the 
right  to  police  those  seas,  to  regulate  fishing. 

We  need  not  here  discuss  the    distinction    made    by 
writers  between  property  on  the  one  hand  and  ' '  empire ' ' 
or  sovereignty  on  the  other.  ^     There  exists  no  shadow  of 
doubt  that  the  powers  <»xercised  by  \\h  ^A\  clearly  under 
the  head  of  empire,  A  sin,^le  quotation  will  suffice.  Ortolan 
defines  empire  as  "Un  sorte  de  droit  de  sou verainete,  de 
tribut,  de  police  ou  de  jurisdiction."  3     How  then  if  a  na- 
tion has  no  property  in  a  sea,  can  it  exercise  sovereignty 
over  it  ?    As  Ortolan  says,  ''  II  faudrait  done  que  ce  peux)le 
se  pretendit  personellement  le  superieur,  le  souverain  des 
autres    *    *    L' empire  des  mers  ne  pent  done  exister  au 

profit  de  qui  que  ce  soit,  pas  plus  que  le  droit  de  pro- 
priete."3 

The  second  argument,  drawn  from  the  exhaustible 
nature  of  seal  fishing,  is  like  one  given  by  Mr.  Lothrop, 
when  United  States  Minister  to  Russia.  He  had  heard  it 
applied  in  Eussia  to  the  fisheries  off  the  coasts  of  north- 
eastern Asia.     Its  substance  as  given  by  him  is  as  follows : 


^Martens,  IV  c.  IV  §  1,  p.  157;  Ortolan  I,  p.  119. 

«  Ortolan,  I,  p.  119. 

8  Ortolan,  I,  pp.  119  and  180. 


-65- 


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the 


"The  seal  fishery  on  our  Beliring  coasts  is  the  only  re- 
source our  people  there  have  ;  it  furnishes  them  all  the 
necessaries  of  life ;  without  it  thny  perish.  Now  interna- 
tional law  concedes  to  every  people  exclusive  jurisdiction 
over  a  zone  along  its  coast  sufficient  for  its  protection  ;  and 
the  doctrine  of  the  equal  rights  of  all  nations,  on  the  high 
seas,  rests  on  the  idea  that  it  is  consistent  with  the  com- 
mon welfare,  and  not  destructive  of  any  essential  rights  of 
the  inhabitants  of  the  neighboring  coasts.  Such  common 
riglits,  under  public  law,  rest  on  general  consent,  and  it 
would  be  absurd  to  affirm  that  such  consent  had  been 
given,  where  its  necessary  result  would  be  the  absolute  de- 
struction of  one  or  more  of  the  parties.  Hence,  the  rule 
cannot  be  applied  blindly  to  an  unforeseen  case,  and  these 
alleged  common  rights  must  rightfully  be  limited  to  cases 
where  they  may  be  exercised  consistently  with  the  welfare 
of  all.  Behring  Sea  partakes  largely  of  the  charjcter  of 
an  inclosed  sea  ;  two  great  nations  own  and  control  all  its 
inclosing  shores.  It  possesses  a  peculiar  fishery,  which, 
with  reference  to  its  preservation,  can  only  be  legitimately 
pursued  on  land,  and  even  there  only  under  strict  regula- 
tions. To  allow  its  unrestrained  pursuit  in  the  open  waters 
of  the  sc:i  is  not  only  to  doom  it  to  annihilation,  but,  by 
necessary  consequence,  to  destroy  all  its  coast  inhabitants. 
If  this  result  is  conceded,  it  follows  that  the  'doctrine  of 
common  rights  can  have  no  applicat^'on  to  such  a  case."^ 

But  as  President  Angell^  says  of  this  reasoning  :  "  We 
can  hardly  assert  with  much  plausibility  that  the  members 
of  the  Alaska  Commercial  Company,  which  has'the  mono- 
poly of  seal-catching  on  and  near  the  Pribyloff  Islands,  can 
plead,  in.  forma  pauperis^  for  protection  on  grounds  of 
charity."  The  extinction  which  indiscriminate  capture  of 
the  fur  seal  threatens  "  deplorable  as  it  may  be,  would  fur- 
nish a  most  flimsy  excuse  to  a  Government  whose  regulations 


1  No.  10*i.    Let.  to  Mr.  Bayard,  Dec.  8,  1887. 

2  Forum,  Nov.,  1889.     "  American  Rights  in  Behring  Sea." 


--56— 

of  the  industry  in  Alaskan  waters  is  prompted  not  by  phi- 
lanthropy, but  by  strictly  mercenary  considerations."^ 

Unfortunately,  this  line  of  argument  seems  to  receive 
weight  from  Vattel: 

"The  various  uses  of  the  sea  near  the  coasts  render  it 
very  susceptible  of  property.  It  furnishes  fish,  shells, 
pearls,  amber,  &c.  Now,  in  all  respects  its  use  is  not  in- 
exhaustible ;  wherefore,  the  nation  to  which  the  coasts 
belong,  may  approppriate  to  itself  an  advantage  which 
nature  has  so  placed  within  its  reach,  as  to  enable  it  con- 
veniently to  make  itself  master  of  it  and  to  turn  it  to  profit, 
in  the  same  manner  as  it  has  been  able  to  occupy  the 
dominion  of  the  land  which  it  inhabits.  Who  can  doubt 
that  the  pearl  fisheries  of  Bahreui  and  Ceylon  may  law- 
fully become  property  ?  And  though  where  the  catching 
of  Cswimming)  fish  is  the  object,  the  fishery  appears  less 
liable  to  be  exhausted,  yet,  if  a  nation  has  on  its  coast  a 
particular  fishery  of  a  prolitable  nature,  and  of  which  it 
may  render  itself  master,  shall  it  not  be  permitted  to  ap- 
propriate to  itself  that  natural  benefit,  as  an  appendage  to 
the  country  which  it  possesses    *    *    V'^ 

And  Dr.  Twiss  not  only  quotes  the  above  with  approval 
but  declares  that  the  right  of  fishery  "comes  under  differ- 
ent considerations  of  law  from  the  right  of  navigation." 
For,  says  he:  "  The  usus  of  all  parts  of  the  open  sea  in 
respect  of  navigation  U  common  to  all  nations,  but  the 
fructus  is  distinguishable  in  law  from  the  usus^  and  in 
respect  of  fish,  or  zoophites,  or  fossil  substances,  may  be- 
long in  certain  parts  exclusively  to  an  individual  nation."  ^ 

What  he  means,  however,  by  "  certain  parts  "  of  the  sea, 
turns  out  to  be  something  very  conventional.  "  The  prac- 
tice of  nations,"  adds  he,  "has  sanctioned  the  exclusive 
right  of  every  nation  to  the  fisheries." — Where?  "In  the 


1  Victoria,  B.  C,  paper. 

2  Droit  des  Gens,  L.  I,  §  287. 
8  Twiss,  §  182. 


-57— 


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pive 


watei-s    adjacent  to   its   coasts  within    the  limits   of  its 
maritime  jurisdiction."  1 

So  that  Twiss'  remarks  have  no  application  to  an  ex- 
chisive  claim  to  fisheries  beyond  the  ordinary  jurisdictional 
limit ;  and  will  not  support  the  argument  in  question. 

If,  on  the  other  hand,  Vattel  in  spite  of  his  limiting 
words  "on  its  coast"  intended  such  extra  marginal 
fisheries,  his  reasoning  had  weight  only  so  long  as  the  in- 
exhaustible nature  of  the  sea  was  urged  as  an  argument 
for  its  freedoni.  This,  as  we  have  already  shown,  is  no 
longer  done  by  the  best  jurists,  ^  and  I  will  add  one  more 
illustration  in  the  words  of  Calvo : 

*  "  Au  point  de  vue  pratique,  celui  de  la  peche,  i>a.v  ex- 
emple,  1' argument  tire  de  la  pretendue  immensite  des  mers 
n'i*,  qu'une  valeur  relative,  et  conduirait,  contrairement  a 
la  pensee  de  ceux  qui  le  mettent  en  avant,  a  soutenir  que 
r  ocean  est  susceptible  d'api)ropriation  dans  certains  cas  et 
qu'il  ne  Test  pas  dans  d'autres,  qu'ilpeut  a  la  fois,  consti- 
tuer  un  domaine  coUectif  ou  national  et  une  propriete  in- 
dividuelle."^ 

But  the  law  failing,  the  fact  of  exclusive  possession  by 
England  of  the  Ceylon  pearl  fisheries  has  been  offered  in 
evidence.^  The  British  Government  does  regulate  and 
control  these  fisheries  to  a  distance  in  the  open  sea  of 
twenty  miles  from  the  northern  end  of  Ceylon.  But  it  has 
never  excluded  other  nations  ;  nor  have  these  ever  acknowl- 
edged any  monopoly  to  England.''  If  they  have  never 
exercised  their  right  of  fishing,  it  is  to  be  presumed  that 
they  could  not  at  a  distance  compete  with  native  diver 
We  are  here,  therefore,  in  the  face  not  of  a  right  but  of  a 
bare  fact. 


1  Id.  and  Wheaton,  El.,  Part  II,  C.  4,  §  5;  Azunl,  T.  I,  C.  II,  Art.  8. 

2  Wheaton,  p.  269. 
8  I,  §  205. 

4  N.  r.  Tribune,  March  19,  1890. 

6  Forum,  Nov.  1889.    Pres.  J.  B.  Angell. 


—58-- 

The  regulation  of  the  Behring  Sea  fisheries  is  now 
awaiting    settlement   before    the  International  Tribunal 
The  seals  will  become  wards  of  the  Supreme  Court  of 
nations.    The  Behring  Sea  controversy  will  be  buried  and 
a  question  of  the  day  turned  into  a  question  of  a  day      But 
as  this  disposal  of  the  dispute  is  to  be  made  without  deter- 
mination of  any  issue  of  marine  ownership,  the  questions 
here  discussed  will  become  dormant  rather  than  dead. 
The  annoyance  caused  by  their  ephemeral  life,  however, 
leads  to  the  hope  that  from  this  sleep  there  will  be  no 
awakening. 


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